A TREATISE ON THE STATE BY LEONIDAS PITAMIC, LL. D. PUBLISHED BY J. H. FURST COMPANY BALTIMORE, MARYLAND 19 3 3 Copyright 1933 by J. H. FURST COMPANY 98952 PRINTED IN BY J. H, PUR } UV TABLE OF CONTENTS PART I. THE NATURE OF THE STATE page I. THE NOTION OF THE STATE. 1 II. THE TERRITORY OF THE STATE. 15 III. SOVEREIGNTY. 17 a) Political Theories . 17 b) Criticism of the Psychological Conception of Sovereignty .... 22 IV. THE STATE AND INTERNATIONAL LAW. 23 V. THE ORIGIN OF THE STATE. 30 VI. THE UNITY OF THE STATE. 36 PART II. FORMS OF THE STATE GENERAL REMARKS. 43 I. THE STATE WITH A SOLE SUPREME ORGAN WHICH IS NOT BOUND BY LEGAL PROCEDURE (DESPOTISM) . . 46 II. THE STATE WITH A SOLE SUPREME ORGAN WHICH IS BOUND BY LEGAL PROCEDURE. 47 1. The Absolute Monarchy. 47 2. The Absolute Republic (Democratic and Aristocratic) . • 48 3. The Referendum (a link between the Direct and Indirect Democracy). 51 III. THE STATE WITH SEVERAL SUPREME COOPERATIVE ORGANS. 56 A. The Older Form—The Feudal State . 56 1. The Feudal Monarchy. 56 2. The Feudal Republic. 57 B. The Newer Form: The Modern State . 58 a) The Idea of Representation and of Separation of Powers ■ • 58 On Representation. 58 On Separation of Powers. 64 1. The Constitutional Monarchy. 68 2. The Parliamentary Monarchy and the Parliamentary Republic 70 3. The Presidential Republic. 77 V VI CONTENTS PAGE 4. The Directorial Republic. 79 5. The Corporate State. 81 b) The Idea of the Composed ( Federated ) State . 84 1. The Confederation. 84 2. The Federal State .. 91 3. The Union of Socialist Soviet Republics and the British Commonwealth of Nations.101 The Union of Socialist Soviet Republics.101 The British Commonwealth of Nations.106 PART III. THE STATE LAW I. THE CONSTITUTION.115 1. Notion and History.115 <£) The Significance of the Fundamental Rights (of Men and of Citizens).123 /^Trhe Kinds of Fundamental Rights., 134 4. Suspension of Fundamental Rights.F?4 5. Citizenship (Nationality).145 II. THE LAW.150 1. Juridical Significance.150 2. Promulgation, Sanction, Publication of the Law.159 3. The State Budget.161 III. ORDINANCES, REGULATIONS, BY-LAWS.167 PART IV. THE STATE ORGANS I. THE HEAD OF THE STATE.174 1. His Legal Status.174 2. The Appointment of the Head of the State—The Succession to the Crown—The Regency—The Deputyship .... 182 II. PARLIAMENT.186 1. History.186 2. The Bicameral System.189 3. Elections.192 The Voters.. • 193 The Mode of Elections.199 The Nature of the Franchise—Its Protection—Compul¬ sory Voting.220 The Elected.224 CONTENTS Vll PAGE 4. Parliamentary Procedure.226 5. Special Rights of Members of Parliament.234 III. THE MINISTERS (CHIEFS OF THE EXECUTIVE DEPART¬ MENTS) AND THE ORGANS UNDER THEIR AUTHORITY (STATE ADMINISTRATION).242 IV. SELF-GOVERNING BODIES.251 V. THE JUDICIARY.259 PART V. THE STATE AND NON-STATE ORGANIZATIONS 286 BIBLIOGRAPHY.293 INDEX.295 PREFACE The first edition of this work was published in Slovene in 1927 (by the Society of St. Mohor in Jugoslavia). What the author now pre¬ sents to the English-speaking public is not merely a translation; it is in many respects a revision of the earlier work, which has thus been brought to completion. Special effort has been made to give a greater clarity to the philosophical explanation of the problem of the state and to make the study of particular state institutions (wherever this has seemed necessary) more thorough-going; and this has been done especially in the case of American institutions. Moreover, the mani¬ fold political changes which have occurred in recent years demanded due consideration. To state the matter briefly, this book is a synthetic treatise on the state, in which the basis of state and law, their interdependence, and the forms and various activities of the state are studied in the light of numerous examples chosen from both past and present; however, in thus illustrating by practical examples, the author has endeavored to utilize his examples chiefly as a means of clarifying the general ideas which underlie them. It was not his aim to solve any political prob¬ lem, but only to show what the problems are and what solutions have been offered up to now. The author has avoided, as far as possible, extensive quotation from the great body of literature on this subject, for had he not he would have unduly enlarged the volume without making it more readable; nevertheless it is hardly necessary to stress the fact that his explanations have their basis or at least their root in the works of well-known politi¬ cal thinkers. And with regard to political theory it may be noted that the influence of Professor Kelsen (now in Cologne) and his school is easily discernible. It may also be remarked that this work represents a crystallization of studies which the author has been carrying on for a number of years, especially as a professor of constitutional law in the University of Ljubljana (Yugoslavia) and then as the diplomatic representative of Yugoslavia to the United States. In this work he has been helped by so many that it is impossible to mention them all. However, he wishes to thank those who have read this English edition, /. e., Dr. R. J. Purcell, Professor of American His¬ tory at the Catholic University in Washington; Rev. Edmund A. Walsh, S. J., Regent of the Georgetown School of Foreign Service, and Mr. IX X PREFACE Hugh Carter, and those who have assisted him in publishing it. But above all his foremost thanks are due to Dr. Edward Cain, of the English Department of the Catholic University of America, who for more than two years has given him most valuable assistance regarding the translation and has spared no effort to improve the diction and style. A small portion of the present volume was published in 1931 through the courtesy of the Georgetown School of Foreign Service under the title Some Notions on the State and Its International Phases, the foreword to which was composed by Professor James Brown Scott. L. P. Washington, D. C. December 1932. PART I. THE NATURE OF THE STATE I. THE NOTION OF THE STATE The greatest thinkers of all time have speculated upon that special kind of human society which we commonly call " the state.” But the result of this mental effort of several thousand years is not a uniform and uncontested understanding of the state; indeed it is almost impos¬ sible to survey all the theories concerning the notion of the state, either those professed in times past or those of the present day. An important reason for this varied comprehension of the state is that, with the changes in the relation between it and other human associations, the state itself, and consequently the notion of it, has changed. Nevertheless, out of the great number of different definitions we can extract the almost uncontested assertion that the state is a species of juridical organization of human beings. This opinion may there¬ fore serve us as a point from which to start to define the object of our reflections. But how can it be explained that even this common basis, viewed solely as such, independent of all disputed characteristics, has produced utterly opposed and contradictory theories of the state? And this especially in our day of objective science, which assumes the right to exclude any subjective addition to investigated facts on the part of the investigator, and which tries to place science on a solid basis of exact observation? The best explanation of this puzzling state of things may, perhaps, be found, on the one hand, in the composite or synthetic character of the notion " state ” and, on the other, in the prevailing analytical manner of investigation to which the exact observers of mod¬ ern times are inclined. Analysis, which is only justified where the discovery and compre¬ hension of the particular component parts of an object are in question, does not suffice for the comprehension of the composite object in its totality. The more various elements a complex object contains, the more, to understand it, must analysis be supplemented and completed by synthesis. If it is admitted that the state is a specific association or organization of men, then the notion of it must be composed of various elements; and the understanding of all those elements together in their special synthesis must be approached by a synthetical method. 1 2 A TREATISE ON THE STATE The prevailing analytical spirit of modern science has probably con¬ tributed much to the fact that it seems impossible to arrive at a uniform understanding of social phenomena. The composite character of these phenomena, it is true, is recognized; but, in a strained endeavor to simplify what is not simple, all the stress is laid upon one or another of the parts of the complex so that the equally great importance of the other parts is neglected. To argue against the results of so one-sided a treatment of composite objects is not always easy; for its results are not entirely wrong. There is some truth in them, but not the whole truth, as far as it is accessi¬ ble to us. The absence of that balance, harmony and proportion, which a sense for synthesis presupposes, is a sign of our times, and manifests itself in theory as well as in practice. What is said of the object is equally applicable to the notion of it. Each element of a composite notion displays its real significance only when considered in conjunc¬ tion with the other elements. The particular elements can not be isolated or studied independently; they must always be viewed with reference to the logical synthesis which makes of them the notion. Not only is each element important for the understanding of the other ele¬ ments, but all the elements of a composite notion are equally important for the comprehension of the whole. Since, therefore, in a correct definition of a notion, all words are equally important, we must, then, consider them all with equal attention. To lay stress only upon one word or another is permissible only if we want to make evident the difference between two different notions. If, e. g., the difference between the state and a religious society is in question (both of them being organizations), it is fitting and even necessary to lay stress upon the element " juridical ” in the notion of the state, because a religious society need not be a juridical organization. If, however, we want to comprehend rightly the definition of the state or, in general, the defini¬ tion of a composite notion, without making a comparison with another similar notion, then we are not allowed to emphasize one word more than another; for all the elements of the defined notion are equally important, just as all the causes of an effect are equally important, in spite of the fact that one person may regard one cause and another person another cause as " more important ” or " more efficient.” To emphasize (in an exclusive, or even only in a predominant way) one or a number of elements of a notion but not all; to dissect the defini¬ tion into particular words; to inquire into their meaning isolated from other words—all this is an offense against scientific objectivity, which THE NATURE OF THE STATE 3 demands of us the same attention in considering each of the elements of a notion. Many wrong ideas regarding the nature of the state can be traced to a mistake of this kind, because an unequal emphasis of the acknowl¬ edged elements of the state as a " juridical ” " organization ” of " men,” is bound to lead to different theories of polity, which we shall now try to expound in their principal characteristics. A As a consequence of the fact that the juridical organization in ques¬ tion pertains to men or people, there are a number of theories in whose definitions of the state all stress is laid on this human element. In view of this these theories differ among themselves according to the sort of people who are taken into consideration as being connected (either actively or passively or both) with the organization in a major way. i. There is first the opinion which identifies the state with those men who, in different ways and especially by means of force, attend to the maintenance of a definite state organization. Thus the state would be the same as the governing class or the governing man. This opinion, which found its classical expression in the oft-quoted utterance of the French king Louis XIV, " L'Etat c’est moi," is similar to the identification of the state with force or domination; but in the theory in question stress is laid not upon force but upon the fact that certain men employ the force. Regardless of the arguments by which we shall later censure the theory of force, we can not adhere to the doctrine in question because we are unable to explain by means of it the identity and the continuity of the state, which remains the same in spite of men being born or dying, coming into the state or leaving it. We shall see, it is true, that the continuity of the state is nothing absolute or infinite and that it is limited by mere facts, which are not of a regulative character. Nevertheless within the boundaries imposed by these limitations the continuity of the state can be understood only from the viewpoint of a system of norms. ii. There is second the opinion according to which the state is identified with those people who are appointed by law to carry out and interpret the juridical rules, namely, the state organs. Yet, just as there can be no law without organs to carry it out and to exercise the use of juridical sanctions, so also there can be no organs without the law; for persons who are organs differ from other persons only in so far as they are qualified by law. The organs are nothing independent; therefore they can not be in themselves that entity which alone constitutes the state. iii. According to still a third theory the inhabitants of the state territory are considered to be the state. The group so considered is, however, some¬ times restricted, sq, that it numbers only those persons who have special rights and duties, in particular those who enjoy so-called political rights, e. g., the franchise, and who are called (active) citizens. 4 A TREATISE ON THE STATE In this form the theory in question agrees almost entirely with the conception that the state is the totality of state organs; for, in performing political duties or in exercising political rights, the citizens can be considered as state organs, at least in a broader sense of this word. But with the conception " nation,” taking it as comprising the unorganized mass of people of the same race, tongue, civilization, etc., and extending beyond the boundaries of a state we can not, of course, explain that particular organization which manifests itself as a state. No theory which identifies the state only with people (whether these people be organs or not), can account for the fact of the identity of the state, which remains the same in spite of the change of men. B A striking example of what one-sided emphasizing of a single ele¬ ment in the composite notion of the state can produce is found in what is called the organic theory of the state. Even the ancient philosophers, e. g., Plato compared the state to a human being; but such comparisons appear to be mere figures and analogies. Nevertheless, there developed in the 19th century (especially in Germany), a theory, based on the metaphysical ideas of certain philosophers, which conceives the state as a living organism, as a being which has its own will like man. Some even say that the state has its soul and a body which is not visible in the same way as the human body, but which manifests itself in its organs. If the state were really a being living of itself, then it would not seem illogical to attribute to it a purpose of its own, possibly divergent from human interests. This theory also, then, with its sometimes tragical, sometimes comi¬ cal excrescences, can be understood as a result of unduly exaggerating one element of the state to the detriment of the others—namely, the element " union ” or " organization.” The significance of this one ele¬ ment is so much emphasized that what is only a " union ” becomes at last a self-existent body and soul, and what is an " organization ” becomes an organism! They forget that the state is essentially only a juridical union of men which can not become a living being endowed with a particular life of its own. C The theories which lay all stress upon the state as a juridical organi¬ zation are summed up in the following: i. There is first the opinion which emphasizes in the notion of law (under¬ standing as law any juridical rule) the element execution by force; it disre¬ gards the composite nature of law, which itself comprises " enforcement ” only in connection with " the rule.” THE NATURE OF THE STATE 5 Now it is true that the difference between the law and other rules of human behavior ( e. g., moral, religious, social) is that juridical rules, as a whole, can be made effective in the end by force. Yet this difference is not to be discerned in the contents of the rules themselves, for moral rules are often at the same time juridical prescriptions. It happens that a religious society lays down the same prescriptions as a state; yet we can not hold both identical. There are records of state organizations which have their origin in religious motives, such as certain medieval states founded by orders of chivalry, or the Papal State. Yet we do not refer to such organizations as religious societies, but as states. Very frequently the state organization differs from other organizations in the content of its rules; but it always differs by the fact that compulsory means are at its disposal. If this element in the juridical rules disappears, then also the distinction between states and other societies vanishes. Thus a sharp line between states and other societies can not always be drawn. The greater the authority of a society to employ means of physical force and the more it clings to this right, the more it takes on of the character of a state. A well-organized state can not, therefore, tolerate such societies without super¬ vision. On the other hand, the more the idea of physical enforcement dimin¬ ishes in the state laws, the more the state resembles societies which have sanc¬ tions other than those of physical force for securing obedience to their norms (e. g., spiritual punishments, diminution of social honor, exclusion, etc.). On this account, it has often been difficult in times of stress to attribute to one amongst a number of rival organizations the character of a state. It was not until the regulations of one of these organizations could be considered as guaranteed in a lasting and secure way by compulsory means, that the idea of the state was realized, and this is clearly proved by the history of the notion of sovereignty. It is therefore justified and necessary to emphasize the element " forcible means ” when we compare the law with other rules; but if we speak about law in general, then the element " rule ” is equally important. To those who consider enforcement the most important element in the notion of the law and consequently in the notion of the state, the state is, of course, predomi¬ nantly or exclusively the same as force or domination. This exaggeration of one of the elements in the notion of the state has bred certain evils, so that it is all the more necessary that " execution by force ” be put in its right place in the notion of the law. The force is simply a guarantee of the juridical rules; but it is by no means necessary that this guarantee always be turned into an actual use of force. When the laws conform to the habits of the people, the use of force will be less necessary than when they do not. Nevertheless we can not speak of a state until “ enforcement ” not only is pro¬ vided for but also is really employed in case of disobedience. The relation between force and law is rightly expressed in an inscription on the southern gate of the Palace of Justice in Paris: " Gladius legis custos.” For here it becomes dear that the sword is merely the guardian of the law, and not the law itself; and this implies also that force must not be employed contrary to law. Force may be employed only within the limits traced by law; and herein lies the distinction between lawful and unlawful force. However, it is to be noticed that there are some rules which we consider juridical, but which are not performable by force; such are certain rules 6 A TREATISE ON THE STATE assigning certain duties to the supreme state organs. Nevertheless we must consider these rules as juridical because they are, of necessity, connected with, and form one system with the juridical prescriptions performable by force, upon which they often bestow a particular significance. ii. There is second the opinion, opposite to that with which we have just dealt, which emphasizes the term " rule,” without indicating the importance of the operation of the law, which is ultimately guaranteed by force. The imper¬ fectness of such a conception is readily discernible; for, if the juridical rules could not be made operative even by force, they would be without that mark which distinguishes them from other rules, i. e., their connection with force, which is provided for in the rule and which secures its effectiveness. Yet, the so-called "normative” school, in its most radical doctrine (which, however, was later on modified by its champion, Professor Kelsen himself) identified the state with the totality of those juridical rules which form one system and which therefore can not contain within themselves any contradic¬ tion. For, did such a contradiction exist, and were there no legal means to remove it, then there would no longer be one legal unity, one state, which, according to this theory, is only another term for the unity of the law. Represented in this extreme form, the normative theory took no account of the fact that the sheer existence of rules, i. e., the existence only within the mind of one or of more or even of all men, does not suffice to constitute the conception of the state, which does not exist until men are really united or organized by juridical rules. The organization must be real, the people must be organized actually so that the juridical rules, at least in most cases, are (as we say) in effect, and thus can, if the necessity arises, be forcibly carried out. This connection between the law as a mere statement and its actualization lies at the bottom of the notion of positive law; so we must consider as positive law also unwritten rules, which have gained guarantee of force, but which have evolved from custom and tradition, i. e., from repeated actual performance. In England, that country which is renowned for its guarantees of personal rights, just such unwritten law constitutes a large portion of the whole body of the law . 1 1 In order to avoid a possible misunderstanding, it may be stated that positive law in this sense (/. e., as being in some necessary connection with its guaran¬ tee by forcible means) is considered apart from its moral value, which rests upon other standards, e. g., on the Divine or natural law, social justice, etc.; the relation between moral rules and positive law is a problem which will be studied later on. " Positiveness ” is also entirely different from the logical and technical perfection of a system of rules. Thus, e. g., the " Codex iuris Canonici ” of the Catholic Church is, in its contents and in its form, an admir¬ able system of rules, regardless of the question of its positiveness in the afore¬ said sense. In connection with the positiveness of rules, it must be said that their effectiveness may be present even when the rules are of comparatively brief duration, as is frequently the case with state rules, in contradistinction to religious prescriptions, moral norms, etc., which later, though lacking guarantees of physical force, often maintain their authority through long periods of time. THE NATURE OF THE STATE 7 It is true that universal and perfect conformity between juridical rules and their actual performance will never be attained. But if many of the rules are not operative and can not be executed even by force, then the positive character of the entire legal system is shaken. Willful disobedience of the supreme juridical rules of a state means, in a certain sense, revolution directed against it; but, — unless this disobedience is an expression of anarchistic ideas — it does not imply a negation of the idea of law or state in general; for the revolutionary rules themselves become legal rules when their lasting performance is secured by forcible means. Positive law and state therefore must be more than mere systems of ideas; they must stand in such a relation to the world of natural causes and effects that the most important, especially the supreme organizatory rules (which are the basis for the creation and the development of laws), are actually executed, and so that one reckons in advance with their performance. We therefore do not entirely understand the nature of the state if we see in it nothing but a mere system of rules. A "rule” or a "norm” is the statement of a duty; it is not the issue of natural causes, but of behavioristic principles. These principles may be conceived as absolute, unconditioned, unchanging, as is the case with religious norms; thus, for the believers, the religious norm has validity, pure and simple, without any condition save that which is set up by the norm itself. State laws do not share this absolute, unchanging character. But in order to insure them greater stability they are often linked with purely moral, especially religious, norms by means of an oath, 7. e., a promise under religious sanctions. For persons bound by oath to abide by a certain rule (e. g., state officers and citizens under oath to abide by the constitution and the laws enacted thereunder), these rules assume an absolute character. Hence, as long as this moral or religious bond is pre¬ sumed to exist, the state is, for these persons, simply the embodiment of its rules, 7. e., the conception of their synthesis, and is therefore of a purely regulative (normative) character. But since the said bond is limited to certain persons and hinges upon their belief, we may say that this character is regulative only subjectively and not objectively. The meaning of this becomes clearer if we consider the case when, by revolt or in some other way, the constitution has been virtually overthrown. Consider¬ ing only the obligations assumed under oath and disregarding all others, we must logically admit that the subverted constitution retains its binding char¬ acter in spite of the fact that it is no longer in effect, and that all, or a majority, of the people have accommodated themselves to the new situation. It appears, then, that these people, balancing their obligation of adherence to a certain rule against obligations inconsistent with that rule, found the former outweighed. If we refuse to acknowledge that such facts may attend the origin of particular states, we can not describe any modern government as legitimate, or justify the existence of any modern state; for its history will reveal that its origin, either immediately or remotely, is connected with revolutionary upheaval. But, since we are dealing primarily with the question of the regulative char¬ acter of the state, we must emphasize the fact that, for the strict legitimists, the old organization, or the abolished constitution, still exists, and, for them, the new situation amounts to lawlessness; for though the old rule is no longer 1 8 A TREATISE ON THE STATE in effect, nevertheless, its absolute regulative character is still a reality in their minds. By this it is also proved that such a regulative conception of the state is not sufficient to explain scientifically the changes to which states have been subject. If we want to understand the problem of the state, not from a subjective, but from an objective point of view, i. e., looking empirically at the problem of the state, an institution which comes into existence, changes and vanishes, then we must take into account also the effectiveness of its rules. The detached observer is not bound to a definite constitution as the unchangeable starting- point of the law. He will abandon this source if he finds that rules emanating from this source are no longer operative and that courts and administrative authorities employ other norms. In determining the original rules giving authority to law, thus making it positive, we must take actual conditions into consideration. It is true that unity and continuity, being essential attributes of the state, can not be understood by mere facts; they must be understood by means of norms which connect certain facts according to a regulative view. And yet state laws are dependent also upon facts and have therefore a relative, con¬ ditioned value; they can not claim the absolute, eternal value of religious norms. Even in dealing with the question of the unity and continuity of the state we must take into account the effectiveness of that rule which establishes unity and continuity. For the rest, the normative theory itself, remaining in the sphere of relative norms, can not be consistent to the end, for it must take as the basis of law a fundamental rule, and can not by a normative method again justify a fundamental rule, which would thus become derivative and would therefore cease to be fundamental or original. In order to justify a legal system from the purely normative point of view we must assume that every rule is derived from a higher one, and thus we must necessarily proceed to infinity; with this method we can not stop at any finite rule as the ultimate source. But if we do wish to stop at some finite rule as an original source (as the leading modern normative theory does), then we have to cut the chain at a point where there are other grounds for justification than purely juridical ones, such as religious or moral prescrip¬ tions (which are considered absolute, and from which for example the oath derives its binding force). Supreme juridical rules, furnished with such a guarantee as the oath, are often the correct point of departure for positive law; but, as we have just seen, such supreme rules often lose this qualifica¬ tion, when, deprived of effectiveness, they themselves have turned into his¬ torical law. Still other grounds for severing the chain of legal derivation present themselves in the form of events in the world of causes and effects, viz., certain political and social phenomena which determine for us what supreme juridical rules, on the whole, are actually operative. A recognizable degree of enforcibility is one of the characteristics of a " system of positive law ” as distinguished from historical law, personal desires, theoretical opinions, or mere moral obligations. A constitution which is operative at least in its essential prescriptions, comprises indeed the immediate bases of positive law. But these fundamental laws were in many instances introduced by abolishing THE NATURE OF THE STATE 9 the old constitution in a manner contrary to the prescription of that instrument. The new constitution as the basis of the law, therefore, is not backed by a rule of the antecedent constitution; thus it is proved that in dealing with the prob¬ lem of the state we must take into consideration not only norms but also facts happening in the world of causes and effects. Yet there is a norm which under certain conditions legalizes, as a means for the creation of states, phenomena which lie outside of the sphere of state law. According to a customary rule of international law a state exists when there is established, in whatever way, either in accordance with the existing laws of the country concerned or contrary to them, a supreme juridical organi¬ zation which asserts itself successfully, gains stability, and is dependent only on international law. Consequently also revolutionary conditions, which in their very beginning certainly are illegal, must eventually be recognized as legal if they become settled and if they present sufficient guarantees of their further maintenance. The state assumes indeed an objectively regulative char¬ acter the moment we look upon it as not of the highest order, a higher order being, for instance, international law. But the question of possible relation between juridical rules and facts in the world of causes and effects is thus merely transferred from the province of state law (the constitution) to that of international law. Here the problem arises again. For international law ' itself, like other law, if it is to be positive, must finally be backed by forces which guarantee to it a certain degree of effectiveness; otherwise international law could not be distinguished from international morals. Even when we assume that the state organization is justified or authorized by international law, we must refer to a working rule of this law. Now, according to international law, every actual power which has asserted itself, in whatever way, as the supreme juridical organization of a country, must be acknowledged as a legal power, and therefore as the legitimate authority of that country. Hence international law is interested only in the effectiveness of the basis of the organization in question, and not in what it contains. Therefore international law, when dealing with the question of the identity of a state, takes no account of what the state laws contain or how they were made; conse¬ quently the continuity of this law, i. e., its consistent dependence upon the same source, is not the factor by which the identity of the state is determined. From an international viewpoint a state retains its identity even after a revolu¬ tionary upheaval, if: (1) the new power has settled, maintains itself, has become regular, e., expresses itself by a set of explicit (written) or implicit (customary) rules; (2) if it comprises more or less the same territory, and (3) if it is considered as the supreme power, i.e., as independent of all other juridical organization save international law. International law contains, it is true, still many other prescriptions for the state, for which the latter is responsible and even liable to punishment if it infringes upon them; but the consequence of such infringement is not the loss of its character as a state; hence conformity to these prescriptions on the part of a state is not an essential condition for the existence of a state; such conditions are only those which we have expounded above. All of this is proof that international law also permits us to consider as a state only such 10 A TREATISE ON THE STATE a juridical organization as is not merely an ideal system of rules, but is at the same time to a certain degree in accordance with actual facts and con¬ ditions. There is still the question of what degree of effectiveness is necessary to make law positive and a state an entity. For it is uncontested that there are some juridical norms which are not in all cases performed or executed by state officials, and still continue to be positive. As a rule, a juridical norm retains its positive character until it is superseded by another explicit rule. This is true, however, only under the condition that the higher and ultimately the fundamental rules, on which the others are dependent, have maintained their effectiveness. For, the positive character of the fundamental rules is always conditioned by their effectiveness, and even international law considers them juridically valid only if they are operative. We thereby confirm the truism that the rules which are most important for the maintenance of a positive legal system must themselves be firmly guaranteed. The rules that constitute the highest sphere of positive law, subject directly to international law, are, in their fullest meaning, i. e., as comprising both the territorial sphere of their jurisdiction and their effectiveness as well, nothing else than the state itself. It appears that Aristotle long ago identified the state with the rules concerning the supreme organization of a country. 2 It is justifiable also from this view¬ point to distinguish between the positive law in its totality and the state, which is nothing more than the supreme (real and effective) field of the juridical organization of a country. There are many historical instances showing that in spite of fundamental changes in state life a great deal of positive law has remained materially almost unchanged. But what are the rules that constitute the supreme juridical organization in a country? Generally speaking, those rules which determine the supreme agents or organs, i. e., the persons who are authorized to issue laws and especially to change the constitution itself. Indeed, we even distinguish accord¬ ing to these rules different forms of the state such as monarchies, republics, parliamentary states, unitary and federal states, etc. Yet for the carrying out of the supreme organization of a state the rules which invest certain organs with the competence to interpret definitely the supreme rules themselves, especially the constitution, are equally important. For, the right to interpret, with binding force, the supreme laws of a country is sometimes still more determinative than the constituent power itself, which is able to frame or alter a constitution. A very good example thereof is the significance of the judiciary in the United States of America. If rules con¬ ferring such a right of interpretation change, then also the form of the state may thereby be modified. iii. To the theory which considers the state as the totality of juridical rules, is much akin the opinion that the state is only a juridical relationship or a plurality of such relations. In every society there are social relations among its members, i. e., between each other, and between each one and the whole community. So also the state is conceived as the totality of juridical relations. Politics, Book III, 1278, b, 9, 10. THE NATURE OF THE STATE 11 But out of this theory there arise the same questions which we have just now discussed concerning the juridical rules, because juridical relations logically can not come into existence without juridical rules. As this theory is entirely dependent on the notion we have of the law, there is no need to add to our inquiry into this problem. D We have already discussed under caption A the errors which are due to a one-sided emphasis of the words " men ” or " human beings ” in the definition of the state. Yet we must not forget that this term has, like all other terms, its proper significance in the definition; it accounts for all the variations and changes in states due to social, political, religious, and economic conditions, etc. It thus becomes the element which explains the diversity of states, past and present. But amidst all this variety there is an unchanging element: the question is always one of an association of human beings (we believe the problem of the animal state, such as that of the bee or ant, may well be omitted in this treatise). Therefore the organization must be somehow " human.” We have said that the rules of the state must be backed, at least to some degree, by force as a guarantee of their performance. But they must also be backed, or better to say, inspired by such ideas as will make living in common, i. e., the community itself, possible. If, by the laws and the state organs, the life of the citizens is not protected, or is jeopardized, so that living in common is gravely menaced, then, as history proves, the existence of such a state organization is imperiled; and the state breaks down if this menace exceeds a certain limit. Besides life, there are certain other human interests which are consid¬ ered (in proportion to the ethical and cultural development of the population) to be of similar value to life, and are therefore called " vital.” A neglect or a violation of such interests, if considerable in degree and kind, is, according to historical experience, fatal to the state. For the present it may be sufficient to state that it is essential for the idea of the state that it provide for those conditions which are indis¬ pensable for community life. A great scholar in political science, Pro¬ fessor Jellinek, of Heidelberg, has said that the law is an " ethical mini¬ mum.” We should like to understand this in the sense that the totality of the laws of a state, or at least its fundamental and most important laws, must yield a ""moral minimum.” This does not mean that there 12 A TREATISE ON THE STATE can be no state when some of its laws are immoral; it means only that, when the moral complexion of the laws in the main falls below a cer¬ tain minimum of morality, that state is weakened at its very foundation and, as history repeatedly attests, subsequently breaks down. But laws do not only impart rights; they also impose duties. The aspect of life in a community called the state, which concerns duties, is conditioned by some sense of duty on the part of the citizens, and this sense is rationally backed by moral principles. The right of one is always the duty of another; and duty means always some sacrifice — at least the sacrifice of not exercising full liberty of action. Viewed either from the side of rights or from the side of duties the state is subject to certain moral laws and thus has in this view a regulative character. This statement would perhaps suffice for our inquiry, if there were no attempts to explain the form of life in community called the state, by mere solidarity of human interests. For, this explanation is not a final one, since all depends upon the character of the solidarity. If solidarity of interests means a sort of mutual and reciprocal insurance somehow concluded in a utilitarian way in order to get benefits for sacrifices, or at least security, then it falls short of being an ultimate, unique, and exhaustive explanation of the problem of common life in such a universal community as is the state. Of course solidarity is, to a certain extent, the basis of the laws and of the state. But solidarity itself must be regulated in order to determine which interests are to be taken into account and which not. It presupposes therefore some regulative principles. If selfish motives alone—and they are the essence of the utilitarian view — compel men to abide by the laws, then it is logical for them not to obey laws whenever laws are not in accordance with selfish motives ( e. g., when some physically or mentally powerful person thinks that he can, without risk, dispense with paying the " price ” for the " insurance ”). But some may say that human nature is not so brutally selfish; that it has also noble feelings of sacrifice without personal interest. It is true that human nature is also inclined to sacrifice, but not in a general way; the natural inclination tends to sacrifices only for the benefit of certain persons such as members of the family and friends. Further, this natural sentiment is not the same in all persons. But even were it strong and did it extend to a large number of people, even to all members of the community called the state, it would still be only a sentiment — subject to all the change¬ ability of this psychic phenomenon. If, thus, the commands of the THE NATURE OF THE STATE 13 laws may be contrary to human nature, depending upon the person or the case, and if they pretend as they do, to regulate relations between men in an objective way, independently of naturally changing human feelings, then their rational justification can not lie solely in the sphere of natural sentiments of men nor can it rest upon solidarity based only upon such natural sentiments. This will appear evident if we consider with an unbiased mind one of the real aspects of the state, modern or ancient; even if by principle it admits the equality of all before the law, it demands also for the sake of the very existence of the state and also for what we call the " common good ” equal readiness of all for unequal sacrifices. Sacrifices for the " common good ” mean ulti¬ mately giving up for others without an equivalent recompense. But how can this ” readiness ” for unequal sacrifices as an essentially unselfish ethical idea be explained by a materialistic, utilitarian princi¬ ple of mutual insurance, by a mere "solidarity of interests?” But even a purely selfishly conceived solidarity, implying a reciprocal give- and-take, presupposes an ethical disposition to keep and to discharge an obligation. So we see that human society, especially in that form which we are accustomed to call the state, implies in its very essence some higher regulative principles. We do not say that the people con¬ cerned are always conscious of this idea, or if conscious, they approve of it; on the contrary, some are even opposed to it, and it is only under compulsion or fear of punishment that they abstain from the indulgence of selfish and anti-social inclinations. Nor do we say that founders or builders of states, or thinkers and state philosophers, or legislators are always aware of all their work presupposes or demands. We only say simply that if we go logically from the very positive state laws to their rational principles, the idea of the state as a universal society of men, with all their clashing interests, is rationally based on principles which conflict with the nature of the human ego and there¬ fore appertain to a higher and a supernatural order. Rousseau himself, whose " social covenant ” is, as it seems to us in the final analysis, only the juridical form of solidarity of interests, drew the conclusion in the last chapter of his famous book, Du contrat social, ou principes du droit politique, that without a " civil religion ” (which he seems to have conceived in a somewhat artificial way as a support only of the state organization), it is impossible to be a good citizen or a faithful subject. Positivism itself, in the theory of law and state, leads us necessarily to certain principles which were known in past centuries as the " law of nature,” of which the source was rightly sought in the supernatural 14 A TREATISE ON THE STATE world. It appears that we must inevitably return to this idea, which in modern times, under the spell of a superficial positivism, has been wrongly discredited. In this light, the state assumes, it is true, a regu¬ lative character. But whereas the famous champion of the modern "normative” school (see above), in a relativistic and purely formal way, considers the regulative principle for each state to be a hypothetical primary norm, drawn from the contents of its constitution, we hold that this principle is derived substantially and materially from the higher sphere of moral principles to which man-made law and state and human society in general are subject. As language is the mirrror of human thought, it might be of interest to cast a glance upon the etymological side of th? problem of the state. The word or the expression for the state in the idioms of those nations which have developed the modern theory of the state, has been used also, according to a repeated change in its sense, to denote the different elements of the present day notion of the state. This is the case with the languages of the Teutonic and Romanic nations which, in more recent times, use in defining the state — significantly enough — words implying a common origin; the source word is the Latin status. At first this word was used to refer to the legal conditions of a country, its organization, constitution, etc.; today we still find the same sense in the word " statute.” The expression " status ” was further employed for the " estates,” meaning those social classes or ruling orders which really administered the state (" status terrae,” in Holland called " Gen- eralstaaten,” in France " Etats generaux”). In the fifteenth century the word " stato ” was applied to those Italian states which had shaken off the supremacy of the German Emperor (civitates superiorem non recognoscentes, i. e., the states not recognizing a master). Yet Machia- velli employs in his book 11 Principe, published 1532, the ex¬ pression " stato ” for all states without distinction, whereas in former times the states were called differently: politeia, polls, res publica, civitas, imperium, regnum, etc. In this general sense, we can say, the word is now used by the French ( Etat) , the Germans ( Staat ), and the English {State). However, in the seventeenth century it acquired an¬ other sense; the law disappeared in the notion of the state, which became more and more absolute. The opinion gained ground that in the interest of the state, namely, of such an absolute state, on account of the " raison d’Etat ” illegal acts were allowable. It is not difficult to recognize in this opinion the theory that the state is the same as a cer- THE NATURE OF THE STATE 15 tain force or domination which is in no necessary connection with or even in opposition to the juridical rules. Only more liberal periods and modern political science have again acknowledged the necessary con¬ nection betweeen state and law in the theory of the legal (lawful) state (Rechtsstaat in German) thereby reviving the meaning of the word " status ” or " state ” as a legal (juridical) organization. But even today this word has more than one meaning; the French expression " Etat,” e. g., is also employed for the state budget, which is only one, i. e., the financial, aspect of the state. It is worth noticing that the English word estate means " a class or order of persons,” then " condi¬ tion or state,” and then also "property”; and it is interesting that the word " drzava ” in the Slovenian language likewise means state, but also " stability,” " sphere of power ” and " landed property.” So we can easily see that even in the various meanings of a single word some of the state theories which we have outlined are discernible. II. THE TERRITORY OF THE STATE Law, organization and people are, as we saw, essential elements in the notion of the state. Is territory also an element of this notion ? Wherever people are, they can be organized under juridical rules. If they have no definite habitation but are nomadic, then the rules of their organization will be applied in whatever place the people happen for the time to be. In such cases the territory over which the rules are applied is changing. Of course, everything which happens must hap¬ pen somewhere; but the question at issue is whether permanence, determinateness, or demarcation of territory is essential to the notion of the state. People can be juridically organized even in those times when they are migrating; there is nothing to prevent us from consider¬ ing such organizations as states, i. e., states not having set territory. But when the majority of the members of a tribe have permanently set¬ tled, then the laws of this society are applied always over the same territory, i. e., the settled territory, which, thus linked with the state, is called state territory. With the localization of nations previously organized by laws, there arose the possibility of fixing the territorial sphere of these laws. This extent of space or territory became thus an essential element of the modern state. This, however, did not take place suddenly, but took several centuries of slow evolution. Long after nations were settled, the idea that laws are independent of territory was retained. This idea of course did not apply to the entire nation, which as a whole did not 16 A TREATISE ON THE STATE continue to wander from place to place any longer, but it applied to its particular members, i. e., to those citizens who went abroad. Wherever they were, they were always subject to the laws of their country. This is called the principle of personal law, which means that the law is bound up with persons and not with territories. The idea that the law of a nation that has settled on a definite territory is applicable to all people within this territory, not only to natives, but also to aliens, has only slowly come to realization. This is the principle of territorial law, which, however, has not even at this time found universal application, in as far as for many legal situations the principle of personal law still holds. But the rule for most cases is the principle that all people in a definite territory are subject to one and the same system of law, i. e., the law of the nation settled there. Thus the territory gets its particular significance in the conception of the state, for the legal rules apply not only to certain especially quali¬ fied people, but to all the people, as far as the jurisdiction or the terri¬ torial sway of these rules extends. Now, we may say, metaphorically, that the law is valid for a certain territory, or that this territory is under a certain regime. All this is confirmed by the fact that execution by force is carried out, even in those cases in which foreign law is employed, after the manner of, and by such agents as are determined by, the law of that state on whose territory the execution takes place. It is clear that by reason of the ever increasing interstate traffic in goods and persons the territorial element is becoming more and more impor¬ tant. But for the same reason the strictness of the territorial principle is relieved sometimes by paying deference also to the personal princi¬ ple, especially in the province of laws concerning sea, river, and air traffic. But the execution of foreign law is, as a rule, conditioned upon the consent of the state where it is to be executed, and thus finally bound to its law; the execution by force is, as a rule, carried out by state organs only on the territory of the state whose organs they are. With the exception of some cases (e. g., those concerning state of war, countries with unfixed boundaries, the high seas, diplomatic com¬ petence, war vessels) we can say that the law of a state has in its full¬ ness (viz., as a norm comprising also its sanction, which derives from the same juridical system) complete authority only on the territory of this state. A delimited territory, or more exactly, a definite space, com¬ prising not only one dimension, but three (i. e., depth, height and width, and so including not only earth surface, but also water, air, and THE NATURE OF THE STATE 17 subterranean regions) must be considered in our time and in civilized countries as an essential element of the state; the state ceases to exist if it has no territory at all, although it has the right to transfer its terri¬ tory partly or entirely. It is perhaps due to the competition which persists even today between the principle of territorial and that of per¬ sonal jurisdiction of the law that the element " territory ” in modern theories is not the object of as much exaggeration as is the case with other elements. Nevertheless, popular opinion (which in general is grossly materialistic) is inclined to think of the state in terms of its most material, visible aspect, i. e., its territory. The old " patrimonial ” theory, however, even went so far as to place the territory, as the prop¬ erty of the monarch, in the front rank of the elements of the state, especially before the element " people ” or " nation.” III. SOVEREIGNTY Positive Law is the element that distinguishes the state as conceived by us from other organizations of men. Churches, religious societies, ethnical groups are based upon another common basis than positive (human) law. But there are many juridical organizations besides the state, e. g., provinces, communities, commercial companies and various other societies, which have their particular juridical rules. What is the difference between them and the state? The usual answer is: The state is the supreme juridical society; it is sovereign; whereas other juridical organizations are not. Before discussing the notion of sov¬ ereignty, it would perhaps be best to dwell for a moment upon the history of this notion, both for the sake of a better understanding of the notion itself and because many political theories are reflected in this history. (a) Political Theories The ancient Greeks had no conception of sovereignty as indicating the complete legal independence of the state. According to their opin¬ ion the purpose of the state was to provide for the happiness and moral welfare of its citizens. A juridical unity established for another pur¬ pose, founded with warlike aims or simply for the security of its citizens or of traffic and commerce, was not yet a state (Aristotle). For them a state existed if it was, of itself, capable of achieving its essential purpose, i. e., of providing for an economically and morally satisfactory, thus for a happy, life of its citizens. The characteristic of the state is 18 A TREATISE ON THE STATE not legal independence, but self-sufficiency (autarkeia) in the indicated sense. Nor did the ancient Romans, as far as we know, have need of a theory of sovereignty in the sense of legal independence of the state. In the time of the Roman monarchy, however, there arose the question, " To whom does the supreme power in the state belong? ” The point at issue was the justification of the supreme power of the monarch and the recognition of his power as a right. It was stated that the supreme authority was vested in the Roman people, which, however, by a special law (lex regia) transferred this authority to a certain per¬ son. Thus, the Roman jurists said, the people has transferred all its authority (imperium et potestatem) to the monarch. Later, the idea of transference was abandoned; it was then granted that the emperor possessed the supreme power simply because he was emperor; for this reason all had to obey him. With the disintegration of the Roman Empire the absolute power of one ruler vanished. Instead of that, there arose in the medieval feudal state numberless higher and lower, and therefore relative, authorities, which were possessed as rights by different lords and which were bound and guaranteed by treaties. Thus, the undivided power of the Roman Emperor was split and divided amongst a great number of men — amongst various feudal lords, kings, dukes, the higher nobility, the clergy, and the towns; further, between the Pope and the German Emperor, this Emperor considering himself the successor of the Roman Emperor (the Roman Empire of German nationality). The authority of dukes and kings in some countries therefore diminished in consider¬ able degree. Foremost among those who struggled for concentration of the entire state authority in one hand were the French kings. In this endeavor they were helped by various theories formulated by their jurists. These jurists revived the notion of the imperium as the supreme power which ought to belong to the king as property; and as property was, according to Roman law, an absolute right, so the supreme power in the country ought to be an unlimited right of the French king. The supreme power being conceived like private ownership, it was assumed that it could also be transferred and inherited like private property. This is the patrimonial conception of the state. The French kings succeeded in obtaining independence from the feudal lords, from the German emperor and from the Pope. And so it happened that, towards the end of the sixteenth century, French jurists gave to the supreme power centralized in the person of the king the THE NATURE OF THE STATE 19 name " sovereignty." The French word " souverain ” is derived from the Latin word " superanus,” which means " superior.” This appella¬ tion was given to those feudal lords whose authority was not derived from other feudal lords. But in the sixteenth century this word came to be used only for the king’s authority; at the same time its meaning changed from " superior ” to " supreme.” At first, the term " sov¬ ereignty ” implied a negative idea, namely, that there was no authority higher than the sovereign power. Jean Bodin, however, in his epoch- making book, Les six livres de la Republique, 1576, added to this term a positive meaning, enumerating six sovereign rights or iura maiesta- tis. He attributed this authority to the French king, but at the same time he also stated that one can not speak of a state if there is no sov¬ ereign power in it. Thus, sovereignty, which was at first considered to be a quality of the supreme state organ, was transferred to the state itself: a juridical organization that is not sovereign is not a state. Bodin is, as we see, the founder of that theory of state sovereignty which rules even at the present time. Notwithstanding the fact that sovereignty became thus an element in the notion of the state, the struggle continued concerning the question to whom sovereignty must be attributed within the state—to the king or to the people. This struggle is one of the most important factors in the history of the modern state. As to the king’s sovereignty, which was defended for the French state by Bodin, this theory had also been demonstrated as early as the thirteenth century by the " legists,” /. e., by the jurists of Roman Law who, in their endeavor to strengthen the unity of the state, placed the king’s authority so high that nobody might have any doubts about it: according to their doctrine the king has his authority directly from God. After Bodin the theory of divine right was defended by well-known French writers, such as Loyseau and Bossuet; at the same time, of course, this theory was championed by the kings themselves: in France by the Bourbons, in England by the Stuarts. In the fourteenth and fifteenth centuries the " estates ” in France assumed a resolute attitude against the theory of the king’s sovereignty. Also the Catholic theologians of the Middle Ages defended the sov¬ ereignty of the nation or of the people. According to their opinion God is, of course, the primary source of every power; but the imme¬ diate source is the people: Omnis potestas a Deo per populism. The sovereignty of the people was also defended by the " monarchomachs,” as various Catholic and Protestant writers were called, amongst whom 20 A TREATISE ON THE STATE were Althusius, Junius Brutus, Hotomannus, Mariana and others; they spread, mostly in the second half of the sixteenth century, the doctrine that the body of the people, by contract, transfers to the king only the use of the supreme power and that it may depose him if he abuses this right. In the beginning of the seventeenth century Suarez, a Jesuit, in his treatise " Tractatus de legibus ac Deo legislatore,” based the sov¬ ereignty of the people on arguments which we find employed later on by other writers also. Suarez says that among men living in a " natural state,” which was their first situation, a common, vested authority was lacking; nobody had title to such an authority. Authority, i. e., legal power can not, according to him, originate except by contract between men. With this theory of social contract, Suarez was a predecessor of Locke, Hobbes and Rousseau. In this struggle between the two theories, the theory of the sover¬ eignty of the king was at first victorious; there adhered to it also some of the writers who had started with the theory of the people, e. g., the English philosopher Hobbes; he developed the idea that, in monarchies, the people has renounced its sovereignty by transferring it to the king, because the citizens have made an agreement among themselves by which they have submitted to the king entirely. Others held that the primary sovereign right of the people became invalid by prescription, so that the king, at first merely the user of sovereignty, became at last its owner. In the seventeenth century the school of natural law developed the theory of Suarez. To this school belonged famous savants: Grotius, the Dutchman; Pufendorf, the German; and John Locke, the Eng¬ lishman. Many principles proclaimed later on by the French revolu¬ tionists (1789-1791) were advocated by writers of this school, especially by John Locke; among those principles were the "rights of man” and, in connection with them, the people’s sovereignty, which in the second half of the eighteenth century overthrew the idea of the sover¬ eignty of the king and the doctrine of the patrimonial state. Nothing in the notion of sovereignty was changed at that time; it was only its holder that shifted; sovereignty was removed from the person of the king and given to the body of the people as a particular person. The idea of the people’s sovereignty asserted itself victoriously and became the historical basis of the political principles which rule modern democracies. Later on certain writers, it is true, endeavored to revive the patrimonial state and the sovereignty of the monarchs, but they were unsuccessful. THE NATURE OF THE STATE 21 The realization of the theory of the people’s sovereignty was effected largely through the influence of J. J. Rousseau, and especially through his book on "the social contract” (Du Contrat Social, 1762). His expositions in this respect may perhaps be summed up thus: By the social contract everybody delivers himself and all he has to the com¬ munity. Through this act of uniting the community acquires its unity, its particular life, and a will of its own; this will, it is true, results from the wills of all; nevertheless, after the act of union, it differs from the wills of all, because it has then become the will of the union itself. So the society became a person, separated from and above all its members; all are entirely subject to it; this person is the state which, as the expression of the general will (volonte generale), is sov¬ ereign. Accordingly, the state is the people or the nation which has organized itself by the social contract. Only the will of the entire people, organized, is sovereign. Sovereignty can not be transferred because it is impossible to transfer a will; it can not be divided, because, if divided, it would cease to be general. Obviously under the spell of these principles the French constitution of 1791 stated: "Sovereignty is single, indivisible, untransferable, imprescriptible, and belongs to the people.” Rousseau inferred from the supposition that sovereignty is untransferable, that the general will which expresses itself in the law can not be actualized by delegates, but finally only by the people directly. Hence Rousseau did not fancy an elected body, representative of the nation (parliament), and supported the idea of small states, because such a representation proved to be inevitable in greater democratic states. This of course could not be accepted by the French revolutionists as applicable in the case of the great French state. They admitted that sovereignty could not be trans¬ ferred, but they held that it could be delegated; the delegates, how¬ ever, were to be responsible to the people for their exercise of the supreme power. The constitution of 1791 goes so far as to make dele¬ gation obligatory: the nation, which is the source of all powers, can execute them only by delegation. In Rousseau’s explanation we perceive no line of difference drawn between the organized nation and the state. In a great part of the later French literature, however, the nation as a person is distinguished from the state. First is the nation and then the state, which comes into existence when the nation has designated those persons whose duty it is to create the nation-’*; will. These delegates are responsible to the nation, because the nation is and remains the owner of sovereignty. 22 A TREATISE ON THE STATE In this respect the opinion of the majority of German writers is dif¬ ferent; they say that sovereignty does not appertain to the nation (peo¬ ple) , but to the state as a person which consists of three essential ele¬ ments: territory, people, and authority. Sovereignty is a quality of the state authority (Jellinek) ; those who execute this authority (also the monarch) are merely organs of the state, and not representatives of the people. (b) Criticism of the Psychological Conception of Sovereignty All these theories seem to attribute sovereignty to a will, be it the will of the king or of the people or of the state; everybody is bound to obey that will. Such a conception of sovereignty was successfully opposed in recent times by Duguit, a Frenchman, and Kelsen, an Austrian. Wills, considered merely as psychic phenomena, can not be different as to their value, since we can not conceive how, as a natural phenomenon, one will should have greater value than another. It is also impossible to decide in advance which amongst the wills, which are interdependent, will finally prevail. An absolute monarch, for example, whose will is considered to be sovereign, has his counselors who, bound by duty, are even obliged to advise him, and thus neces¬ sarily to influence his will. The psychological conception of the will can not be brought into conformity with that conception of sovereignty which exalts the value of one will over another will. So it is easy to understand why those who defended the sovereignty of a certain person attributed to his will a supernatural source; they were well aware that in no other way could the superiority of this will be demonstrated. This leap into the supernatural world was taken to bolster up the king’s sovereignty: the will of the king is the highest one, because he obtains his authority directly from God. That is the principle of the theocratic state. Others who attributed sovereignty to the people, transformed a plurality of men into one person, investing that person with a particular will; then it was not so difficult to concede the superiority of such an artificially created will, which did not exist in the natural world, over the wills of particular men. Still others who endeavored to justify the sovereignty of the state, considered it, in a similar way, as a supreme person, as an absolute or (e. g., Hegel) as an almost divine being which, of course, has, in relation to men, a sovereign will. The assertion that the " will of a person or of a group of persons is sovereign, means, in reality, that what they declare to be the rule has definitive value as a binding norm and, consequently, that others have THE NATURE OF THE STATE 23 the duty to comply with these declarations. But whence does the declaratory act of the supreme state organs, e. g., the vote of parlia¬ ment and the sanction of the head of the state, draw its value as a bind¬ ing rule? This value can derive only from a still higher rule which states that the declaration of the organs mentioned has binding force (or value) as a law. For, as we have seen, in the natural sphere of psychic phenomena there is no superiority and inferiority, higher value and lower value (“superordination” and "subordination”); there the natural law of cause and effect (or of functional interdependence) rules. Yet we do find such a gradation of higher and lower phe¬ nomena in the sphere of ideas, in the region of moral and juridical rules. Why, e. g., is an ordinance subordinated to the law? Only because a still higher rule, the constitution, ordains that an ordinance is valid only when it is in accordance with the law; this means that the law has a higher value than the ordinance. Thus we must finally arrive at a supreme juridical rule, the validity of which can not be drawn from any other juridical rule; such a rule we may call " sover¬ eign.” Sovereignty therefore means the supremacy of a juridical rule or of a group of such rules over all the other juridical rules. This idea can also be expressed thus: The sovereign rule is not subordinate to any other rule. The ingenious Rousseau was quite near to such a con¬ ception of sovereignty; he attributed sovereignty, it is true, to the organized nation; but we must not forget that he conceded sovereignty to this body only in so far as it is the creator of the general will which expresses itself in general laws. IV. THE STATE AND INTERNATIONAL LAW If the juridical rules of an organization are not subordinated to any other juridical rule, we may say that this organization is sovereign. This would apply to a state which is legally isolated, e. g., to primitive states which are in no juridical connection with other states. But this situation is altered when the states recognize each other and when political, commercial, and traffic relations develop between them. But what is the character of these relations? Which law regulates them? The consistency of these relations can be legally guaranteed only if their existence is independent of the law of the states involved. For, if such a dependence exists, each of the states concerned could simply by changing its own law dissolve international relations and thus disen¬ gage itself from its duties. The juridical solidity of international rela- 2 24 A TREATISE ON THE STATE tions inevitably demands independent international, and that means supra-national rules. Have these rules a juridical character? Is not all that is called international law only a sort of moral code which binds the leading personalities of particular states only in a moral way? The answer to this question depends upon whether international rules pos¬ sess that specific sanction which is essential for positive law (according to our conception), namely, the guarantee of force. Now, history and practice show that force is really connected with international relations, e. g., reprisals and wars undertaken to enforce an international rule or to punish its violation. There is, it is true, a great difference between the employment of force in the interior of the modern state and the use of force between modern states. In a modern state special organs ( e. g., judges) are appointed to determine conclusively the meaning of the law and to use force in its execution. In international relations, however, very often the state which suffered wrong through the viola¬ tion of an international rule by another state, was judge in its own case. But not only did it render judgment concerning the wrong done by another state; it was, in addition, the power which executed its own judgment, if necessary, by force. In more recent times, however, there happen to be an ever-increasing number of independent inter¬ national organs (courts of arbitration, international commissions, etc.), established in order to settle by awards or decisions conflicts arising between states. In the organization of the League of Nations initiatory steps were taken for the use of force as a kind of organized interna¬ tional enforcement and punishment. For all this, we can not say that there was no international law in former times. But this law, consisting of generally acknowledged rules, was in many cases made effective only by self-help. In times past, the enforcement of the law within the state organization itself was largely dependent on just such inferior means; and so, it is even today in certain poorly organized states (blood-feud). He whose right has been violated, made his own equity with the wrongdoer, thereby defending his rights and the law. It is not necessary to explain the danger to which the protection of rights was exposed when this protection was secured by self-help, which often was mere self-will, /. e., arbitrariness divorced from legal norms. The history of law shows by what a protracted process the authoritative definition and the enforcement of law passed from the individual (or from his family) to certain qualified and responsible people who were appointed to define and to enforce the law and whom we call state organs. The same evolution has begun and is still going on in the THE NATURE OF THE STATE 25 sphere of international law where, however, it meets even greater diffi¬ culties and obstacles, and demands still more strenuous efforts. So we see that there is a law which is above the states, though it was created by the states themselves, viz., by their organs (the law within the state is also created by men who are themselves subject to it). Thus, the legal rules of a state are not the highest ones, for, above them, there are the norms of international law. If we consider sovereignty to mean the supreme authority of certain juridical rules, then we can not say that any modern state is sovereign. For the sovereignty of that juridical organization which we call the state is inconsistent with the existence of international law. With every improvement of interna¬ tional law the exactness of this statement becomes more and more evident. But how can we draw a line between juridical organizations, such as communities, provinces, etc., and the state if we do not recognize the latter as sovereign? The difference is discernible in the juridical rela¬ tion of those organizations to international law on the one side and to the state law on the other. The state is a union of men which is subject to international law directly, whereas all other juridical organizations (except international ones) are subject to the state, and through it, and thus indirectly, to international law. The state has authority over such subordinate organizations; and we can say that it is sovereign for them. So, the word " sovereignty,” as qualifying the state, has regained its original meaning, namely, " higher ” instead of '' supreme,” a com¬ parative instead of a superlative meaning. Therefore, sovereignty of the state in this sense does not coincide with the notion " competence over competence ” (this is the expression of a widespread theory), which means that the state is competent to establish all competences; for the competence of international organs is outside the jurisdiction of particular states. The notion of the sovereignty of the state as meaning supreme, abso¬ lute, legal competence was possible in times when international law was not yet known. But for our time the sovereignty of the state means something relative; it coincides with the idea of direct subordi¬ nation of the state to international law. Up to this time the term " sovereignty ” has not taken on a fixed and universally accepted meaning. It seems to have been the subject of even a greater variety of interpretation in modern times than it has in the past; and this diversity of meaning persists not only in the lan¬ guage of the layman, but even in scientific literature. It is used, to 26 A TREATISE ON THE STATE cite only a few cases, to designate the supreme power established in a certain territory, which power has again been divided into an "exterior” and an "interior” sovereignty; it is used in referring to the totality of the state competences, and also to indicate the supreme state organ in monarchies, namely, " the sovereign ”; and it is likewise used to qualify that sentence of a court, from which there is no appeal, the court giving judgment “ sovereignly.” To add another example, the Swiss constitution states that the " cantons ” are sovereign in so far as their sovereignty is not limited by the federal constitution—and thus certainly does not use the word sovereignty to mean something absolute. It would perhaps be wise to drop entirely a word which is so often abused or, at least, to employ it with caution. Conclusions to be drawn from the fact that states are directly subordi¬ nated to international law: From our opinion that the state is a juridical organization subjected directly to international law, it follows that, among themselves ( inter se), states are coordinate and equal. Every state is legally independent of every other state. Moreover, from this coordination we can, vice versa, infer the superiority of international law, viz., that it is placed above the state; for the conception of states as coordinated, each of them having authority only over a limited territory, is inconsistent with their individual sovereignty and necessarily presupposes a set of rules which would define the delimitation of states and which would therefore be higher than the law of any particular state. The obliga¬ tions that one state has towards another are derived either from the general international law or they are especially stipulated in treaties between states. But the states as a rule remain independent in spite of the obligations they have contracted because above all the contracting parties there is the treaty, which is invested with the character of inter¬ national law and, as such, binds each state equally and directly. The independence, coordination, and legal equality of the states always manifest themselves in the act of concluding a treaty, but not always in the contents of the treaty. For these contents are sometimes such that they actually do affect independence; e. g., if a state in exchange for getting the protection of another state obligates itself to arrange its legislation according to the will of this other state alone, or to concede to it the right of diplomatic representation, or of making treaties. In such an instance, when a state, by treaty, has parted with its competence to do acts which are subject directly to the cognizance of international THE NATURE OF THE STATE law, we speak of a protectorate. If this relation is irrevocable so that it can not be dissolved by a unilateral act of the protected state then this state has lost its state character; on the other hand, if it can do so it must, in spite of the treaty in question, be considered as a state, because it can, by denouncing the treaty, do something that is directly subject to the cognizance of international law. The state likewise loses its character of state if it irrevocably transfers to another state the right of appointing state organs, because in this case also its organization is no longer subject directly and solely to the international community but partly at least to a foreign state; this, in addition, affects necessarily its full liberty in concluding treaties. Thus, the coordination with other states has ceased. If, however, a part of its state competences has been transferred to an international organ, the state has lost nothing of its state character, because it remains subject directly to the international community. The Austrian Republic remained a state even after a Commissioner was appointed by the League of Nations in order to control the Austrian finances as an inter¬ national organ. From all our inquiries about the nature of the state we can now extract the following definition of the modern state: The state is a juridical organization of men which is ( 1) established on a certain territory, which is (2j subject directly to international law, but which has (3) authority over all juridical organizations on its territory save those which depend directly upon international law. It might now be well in order to illustrate the relationship between the state and international law to consider briefly the sources from which international treaties derive their binding force. The contents of these treaties depend upon the will of the con¬ tracting states or, strictly speaking, upon that of their organs. How¬ ever, the binding force of a treaty, i. e., the legal duty to fulfill it, can not derive from its contents, for the contents of treaties are based upon the general supposition that agreements are binding;—just as the binding character of a contract between private persons does not derive from the contract itself, but from the law which states that the obligation is a consequence of the fact that a contract has been concluded. Nor can that which determines the binding force of international treaties in general, be another treaty or contract, for there would immediately arise the question, " what is the source of the legal validity of” this other contract?” If we keep within the limits of the legal system and do not push the investigation as far as 28 A TREATISE ON THE STATE to the religious or moral source of the rule which determines the binding force of contracts, we see that it is simply a customary rule which states that contracts do oblige: pacta sunt servanda. Thus, the source of the validity of international treaties must be independent of the will of the individual states which is expressed in the contents of the treaty; but it also must be independent of every state norm, even the highest (the constitution) ; otherwise the law of any state would be above international law, and no state could be bound to keep its promises towards another state, for every state would be able to change its international obligations by changing its own law. Such a notion of a contract or treaty which is not obligatory, would be of no value. It may be mentioned that the question of how international treaties are definitively concluded (exchange or deposition of ratifications, or the special form of " adherence ” ) is likewise regulated by inter¬ national customary law; and it is to be observed that even the very controversial question of how and by what law state authorities are empowered to conclude treaties validly is, according to one opinion, directly, and according to another opinion, indirectly (through dele¬ gation to state law) regulated by international law. But, if as we have shown, the state is really subject to international law, how can we explain the fact that international law is not carried out when the provisions of state law are opposed to it, whereas in such cases these provisions ought to be invalid and void? This para¬ dox can only be understood if we consider that the state is a juridical organization which has juridical rules of various degrees and values and which has organs of various authorities, higher and lower. And what we are able to ascertain with respect to the body of state law, namely that not all organs are entitled, indiscriminately, to interpret and to carry out all the law (but that a definite set of organs is restricted in its jurisdiction to a definite grade of law which it must carry out without having authority to pass upon its conformity to higher grades of rules) applies likewise when the state organization comes in contact with international law. If certain state organs, e. g., administrative officials, have no right to control laws and ordinances as to their conformity to the constitution, they have so much the less the right to bring laws and ordinances to the test of international law, e. g., of treaties (unless this right is expressly given to them by the state law). They are, further, not empowered to carry out these THE NATURE OF THE STATE 29 treaties before the latter are moulded into the form of state rules such as alone provide the proper sphere of activity for the organs in question. For this reason international treaties are usually carried out by each state in the form of a law or of an ordinance. A treaty which is approved by parliament has also authority equal to that of a law, though, as is the case in certain states with certain treaties, it may not be issued in exactly the same form as laws are. If, how¬ ever, according to the constitution of a particular state, international treaties are valid as law without being thus recast, they must neverthe¬ less be published in the manner prescribed for the publication of obligatory state rules. The situation of a state organ with regard to international treaties which he must carry out is similar to that of an executing officer who is not allowed to carry out a sentence when he happens to get unofficial knowledge of it, but who must wait for the writ of execution issued by the judge and who has no power to deter¬ mine the legality of the judge’s decision or sentence. As a rule, only certain state organs have the duty of carrying out international law directly, i. e., of seeing that it is observed and that, for this purpose, it is brought into such form that it binds other organs also; these organs are, e. g., for international treaties, those who concluded them or who are responsible for their conclusion, viz., the head of the state and the ministers. If they do not comply with this duty, they may become liable according to international law. International responsibility may extend to persons who, according to state law, are not responsible. It is also possible for this international responsibility to fall not upon him (or him alone) who has disregarded an important international obliga¬ tion, but upon someone else also, and even upon an indefinite number of citizens, as is the case when reparations are to be paid or when inter¬ national enforcement is carried out by means of war. This is one of the numerous examples of liability for another’s guilt (the whole nation is liable for the wrong of its government) and, essentially, does not differ from the liability of all the members of a company for the acts of the organs of that company. Just as in the state every rule ought to be invalid which is in con¬ tradiction to the constitution, so also every state rule or act ought to be void which is contradictory to international law. Yet not every organ is empowered to determine whether such contradictions exist. Until the organ endowed with proper jurisdiction to decide upon such contradictions has pronounced his judgment, state law which is con¬ tradictory to international law is carried out, just as an unconstitutional 30 A TREATISE ON THE STATE law is carried out until the organ who has authority to examine into it, declares its unconstitutionality. And if he declares that the law in question is in accordance with the constitution, it must be carried out, even though, in reality, it is unconstitutional. Recent developments in international law, it is true, constitute a great step forward in the creation of international organs for the application, the interpretation, and even the enforcement of this law; we mention as relevant to this the various organizations established within the system of the Covenant of the League of Nations and pro¬ vided for in other treaties also. But we admit that the international organization is not yet as strong as the national organizations; and therefore the guarantees for conformity of state law to international law are weaker than those for accordance between the various classes of law within the state. The problem, however, is the same. As we are able to recognize the unity of state law in spite of the possibility of contradictions, which arise from the fact that different organs are limited in their actions by different degrees of the law, so also we can recognize the same phenomenon in the relation of state law to international law; both, however, in spite of the possibility of dis¬ crepancies in their execution, make up only one legal system, for superiority and inferiority are conceivable only in one and the same system. So we see that law as a system of rules has unity as its universal characteristic; but that the logical possibility of contradictions in its substance, arises from its being carried out on different levels of the whole juridical organization. V. THE ORIGIN OF THE STATE The question of the origin of the state may be understood to com¬ prise two questions: 1) How did the first states in human history originate? 2) How do new states rise out of existing states? Let us start with the second question. A new state is to be considered as existing if there appears on a part of the territory of a state a new juridical organization which succeeded in claiming its independence of the old organization and which is itself subject directly to international law; this may be effected either by a treaty (as for example between the Irish Free State and Great Britain in 1921) or by revolution ( e. g., the Czechoslovak Republic against Austria in 1927). In order that the new organization be directly subject to international law, it is not THE NATURE OF THE STATE 31 essential that it be recognized by other states; it is only necessary that this organization itself recognize the authority of international law, and that means that it subordinates itself to this law. A similar case is the union of two or more states. If the union does not involve " incorpora¬ tion,” that is, the extension of the jurisdiction of one of the states concerned over all of them, but if, by the act of union, all the state organizations in question are abolished and if, for all the territories now united, a new supreme organization is established, then we must hold, that a new state has come into existence; for if a new state were not now in existence, we should have to determine which of the old, but now united, states had retained its identity as a political organiza¬ tion ; this, however is impossible, as it would be contrary to the character of the act of union. As every real state is directly subject to international law, the charac¬ ter of the new union would have to be decided according to inter¬ national law (by means of international treaties) ; it is very desirable that these treaties make clear whether a " new ” state, comprised of all the old states, had arisen or whether one of the " old ” states had con¬ tinued its existence in an expanded form. It would be highly import¬ ant to have this decision made especially because of questions which might arise in the future concerning the validity of international treaties and also of other obligations and rights which were valid before the union was formed. At the same time that we give our definition of the state we give also an answer to the question: When does a state cease to exist? Its existence ends when, for any reason whatsoever, it ceases to be directly subordinate to international law. A definite and general answer, however, cannot, it appears, be given to the question propounded at the beginning of this chapter; the main reason for our doubts is that the origin of the first states involves facts with which we are unfamiliar, at least in the great majority of cases, for they came to pass in prehistoric times. Nevertheless, many the¬ ories regarding the first realization of the idea of the state have been advanced. These theories can, in general, be summed up in two opinions: 1) That the family is the source and the prototype of the state; 2) that the state owes its existence to a contract among indi¬ viduals. The first opinion places the origin of the state in a society whose authority was derived”from nature itself, namely the family; it was such a society which, according to them, then extended its own organi- 32 A TREATISE ON THE STATE zation to other families, clans, tribes, etc., even using force (war) when necessary; it is because force has been employed for this purpose that one speaks of the " origin of states through wars of conquest.” The second opinion tries to explain the origin of the state on the basis of individual self-determination and personal liberty without taking into consideration any authoritative natural society: The con¬ tract which creates the society (social contract), creates the state also. The first opinion, starting with the natural fact of men living in com¬ mon in a traditional society, the family, has a rather conservative tint; whereas the second opinion, starting with the individual human being, isolated, unbound and free, offers support to new ideas, revolutionary movements, reforms and abandonment of traditions. No wonder that both opinions — having their source in two con¬ trary tendencies of human nature—are as old as theoretical political thinking. According to Aristotle the first society of men which was necessary for the very continuance of life and therefore natural, was the family. " But the society of many families, which was first insti¬ tuted for their lasting, mutual advantage, is called a village, and a village is most naturally composed of the descendants of one family . . . And when many villages so entirely join themselves together as in every respect to form but one society, that society is a city, and contains in itself, if I may so speak, the end and perfection of gov¬ ernment: first founded that we might live, but continued that we may live happily. For which reason every city ” — in our time we should say " state ”—" must be allowed to be the work of nature, if we admit that the original society between male and female is; . . . Hence it is evident that a city is a natural production, and that man is naturally a political animal, and that whosoever is naturally and not accidentally unfit for society, must be either inferior or superior to man . . . but he that is incapable of society, or so complete in himself as not to want it, makes no part of a city, as a beast or a god.” 3 We can discover, on the other hand, the idea of a social contract in a very ancient doctrine advocated, as Plato relates, by the great Greek philosopher Protagoras and, after him, by the sophists. Accord¬ ing to this doctrine men by nature do not live in society; it is only experience, showing that each alone is too weak, that has induced them to unite. But in the first union it was the natural force of the individual, and so the right of the stronger, that ruled. But this con¬ dition has become intolerable. Men therefore contract to respect the 3 Aristotle, Politics, Book I, Chapter II, translated by William Ellis. THE NATURE OF THE STATE 33 rights (and that means the interests) of each other; thus they unite once more by law. This is the essence of the theory of Protagoras and, in general, of the idea of men uniting by a contract; this idea appears in the thoughts of many political philosophers of antiquity, the middle ages and modern times. Especially in the middle ages and in modern times up to the nineteenth century did this theory prevail; it appears in the writings of St. Augustine, Nicholas de Cusa, Hugo Grotius, Pufendorf, Thomas Hobbes, John Locke and many others, and finally in the work of J. J. Rousseau. Arguments in sup¬ port of this theory served not only to defend the rights of men, which are prior to those of the state, the liberty of the citizen and the sov¬ ereignty of the people, but also to defend the absolute rule and the sovereignty of the king. The theory in question has been expressed in various juridical constructions and combinations of one, two and even three " contracts.” We can still find traces of this doctrine in the modern theory of " acceptance,” according to which the law is not valid before its acceptance by the people who are subject to it. Be this acceptance believed to be the consent of each particular indi¬ vidual or of the majority, or be it conceived as an approval given in advance to all the acts of the state authority,—we can always see in this demand for a concordance of wills a similarity to or even an identity with the theory of the social contract. This theory was championed in the most brilliant way by J. J. Rousseau in his book Du Contrat Social. Owing to its convincing explanation of ideas, most of which were known earlier, this book became the theoretical basis for the great French Revolution, just as John Locke, the great predecessor of Rous¬ seau, had, a century earlier, given in his writings a theoretical justifi¬ cation of the English Revolution. Rosseau says that men have put an end to the state of nature in which each one had no other resource than his personal force, by entering upon a social contract. Though the terms of this contract may never have been declared expressly, they, nevertheless, are tacitly recognized; they are the same everywhere. If this contract is violated, everybody regains his natural liberty. The conditions of this contract can be reduced to this one term: everybody surrenders himself with all his rights to the community. So the situ¬ ation of all is the same, and the union is complete. Each member of the society gains over every other member the same right that he concedes to this member over himself; thus everybody gains the equiva¬ lent of what he yields but, besides that, also a greater power to keep what he possesses. Such an act of union creates that collective unit which we call the state. 34 A TREATISE ON THE STATE But what Rousseau avers, viz., that the terms of the social contract are accepted at least tacitly (and this is also the essence of the modern theory of approval) does not agree with the facts. With regard to his statement that to settle on the territory of a state indicates a willingness to be a member of that state , 4 it must be remarked that this is true only in certain cases. The mere act of settling on a ter¬ ritory need not indicate more than the mere will of the settler to dwell on it. By this act he is subjected to the laws of the state in question regardless of his own wishes. Moreover it is possible that he may not even know to what state the territory, on which he has settled, belongs; this might happen within certain sparsely populated states in America and Africa. The weakness of the opinion in question becomes even more evident if we study those cases in which a territory has passed from the hands of one state into those of another. This happens often without consideration of and sometimes even against the wishes of the inhabitants of this territory. Perhaps the flaw in this doctrine is due to an undervaluation of an essential element in the notion of the state, namely the element which qualifies the state as a juridical organization of men, which means that the rules of this organization are protected by force and that they can be enforced even without the consent or against the will of people dwelling on the state territory. Rousseau himself very prudently added to his assertion the remark that it applies only to a free state. It has been urged against Rousseau that there is a logical mistake in his explanation of the state through a social contract. For whence does the original contract draw its binding force? If this contract is a legally binding act, where is the legal rule that gives a binding charac¬ ter to an agreement of wills? Such a rule cannot exist at the moment when the contract is concluded, because the contract alone is supposed to be the source of the state and of all law. Rousseau, in the opinion of his critics, is running a vicious circle: the law {viz., the contract) creates the state, and the state creates the law. As before mentioned, it seems impossible to construe a general theory of the origin of the state; such of these theories as exist usually contain an ethical or political justification of some state ideal; so it was with Rousseau: behind his social contract there is hidden his own first political doctrine of equality and liberty. But such doctrines do not explain the crea- 4 " le consentement est dans la residence ” Contrat Social, Book IV, Chap¬ ter II. THE NATURE OF THE STATE 35 tion of the state; they deal only with the problem why and for what purpose it is to be established. Regarding this question, concerning the principal aims and purposes for which state organization is intended the following may be set forth in broad terms: States rise, change and vanish because of human aims, religious, national, economic, etc., which are not all constant and permanent. The nature of the material and spiritual goods for which legal pro¬ tection is desired changes; along with it the substance and often also the territorial reach of this protection, viz., of the legal rules, changes. In times past religious ideas were often a great influence in shaping states. But these have, for our times, largely given place to expanding nationalistic ideas as now more effective instrumentalities of political change. However, it must be remembered that the material side of human life, which expresses itself in terms of economic interests, has always been a major consideration in this respect. There are some who desire that the state organization be only a means of protecting the free sway of the economic interests of the individual which, in their opinion, are sufficiently served when the state takes care of order, peace, security, and liberty for the individual (liberalism)—there are others who desire the state to participate actively in economic life, or even to regulate the production and distribution of goods so that economic concerns may enter, as far as possible, into the competence of the state (socialism). There is the further demand that the state also take care of cultural aims, of education (and that according to a certain view), of religious life, of the moral conduct of its inhabitants ( e. g., the ethical ideal applied to state life advocated by several Greek philo¬ sophers) ; if the interference of the state has no fixed limits, then we speak of a " police-state.” All these ideas have been actualized often in various combinations. It ought to be stated furthermore that power¬ ful personalities have at times actuated the establishment of states, sometimes merely by personal desire for power and glory, and so were also contributory factors in the complicated process of moulding states. One purpose, however, is after all inherent in every state idea: to render possible human life in common, and as we saw in Chapter I, this aim can be achieved only if the state organization is based upon a certain ethical minimum.” Anarchism, on the other hand, invoking full liberty and thus rejecting every existing form of state organization (viz., organization guaranteed by force) has not, up to now, been able to take actual shape. 36 A TREATISE ON THE STATE VI. THE UNITY OF THE STATE The continuity and identity of the state can be understood—as it has already been demonstrated—only from a regulative viewpoint, that is, as a quality inherent in rules considered as valid; this same view must be taken if we want to understand the unity of the state. The element " men ” in the notion of the state is not that which constitutes the unity. The population of a state is composed of various unities, national, religious, professional, etc., which often extend be¬ yond the boundaries of one or even of several states; moreover we can not assume that there exists a unity of wills of men living in the state, meaning thereby a general accord as to the aims and the form of the state organization or even of its validity; political events in every state prove that there is no such unity. Neither is the state terri¬ tory that element which explains the unity of the state. For why do we consider this territory as a unit? The territory as such is but a notion of natural science; the nature of the territory itself, considered from the geographical, geological or any other standpoint of natural science, bears no relationship to the unity of the state, for it exhibits in one and the same state a multiplicity of forms; land, air and water may be divided into natural units, but as such they have nothing to do with the notion of the state. Thus, there remains for our consideration in this respect only the element " juridical organization.” In fact, this is the only element that allows us to consider the state territory, as well as its inhabitants, a unit. The state territory is that region where the rules of one and the same juridical organization have full sway; these rules join the people of this region together into a juridical community or unity (conf. p. 15 et seq.). The truth of this is not contradicted either by the fact that there are a great number of juridical rules in force in any state or by the fact that the vast majority of the rules in force in one part of a state may differ from those in force in another part of the same state. For all these rules, as different as they may be, form a unity because they all are dependent on a group of supreme rules above which there is immedi¬ ately international law. The unity of the state therefore means the unity of the law; by which we mean the common dependence of all juridical rules on a group of rules above them, which have authority over the entire state territory, which are subordinate to international THE NATURE OF THE STATE 37 law directly, and which we call " the constitution,” because they are the basis upon which all the other juridical rules are established or constituted. But within the frame of state unity there are organizations subor¬ dinate to it, and therefore lower, which have for at least a part of their competences special rules; if these rules are executed independently and — under the condition of legality — conclusively by persons who are appointed according to the rules of this special, and not of the general state organization,—then we have to deal with a special juridical unit. Though they are subordinate to the higher state unit, they appear as individual juridical units, for they can execute their own rules through their own organs, and can, if necessary, do this by means of force. Thus, these organizations administer themselves; they exercise self- government or autonomy; this, however, is in no way incompatible with their being united under the general state unit. Law (constitutional or international), which, as a set of norms, is independent of the mere lapse of time, joins generations of men in a juridical unit that lasts sometimes centuries and centuries; it is there¬ fore through the law that we conceive the identity, the continuity and the unity of the state. On account of these qualities and because rights and duties are attributed to the state, we usually consider it to be an " artificial ” or " juristic ” person; or vice versa: being such a person the state has the mentioned qualities. A juristic person is generally speaking, a group of human beings or a group of things (e. g., funds in trust or objects endowed for public use), or even a group of human beings and of things, which constitutes a juridical unit and to which is ascribed, similarly as to an individual, the capacity of having rights and duties. A distinction is made, according to theory, between those legal persons, on the one hand, which are called corporations and those, on the other, ■which are called institutions or foundations. This distinction is based upon the fact that, in the case of the corporation, the individuals of the group in whose interests the common administration exists, participate in this administration either directly, i. e., personally, or indirectly, i. e., by means of chosen representatives; whereas, in the case of the insti¬ tution, the individuals do not participate in the administration either directly or indirectly. This being the case, the state, as a juristic person, tnust be classed rather as an institution. For it is not highly probable that the first organization of a state is established by a joint resolution °f all the people subject to its organization (not even Rousseau claimed 38 A TREATISE ON THE STATE this) and, further, there are even in a modern state comparatively few people who are active members, in the sense that members of a corporation are; nevertheless it is true that the number of active mem¬ bers increased steadily from the times of the absolute monarchy up to the modern democracy. All the people living within the territory of a state are subject to its organization; so also are foreigners, who cannot take active part in the development of the state organization, though, as to other rights, their condition is gradually improving. The develop¬ ment of constitutional law in affording citizens increasing opportunities for participating in the state organization itself, is constantly giving the state a closer resemblance to a corporation; but modern international law is moulding the state into an institution with a large autonomous organization, which functions in the interest not only of its own citizens, but also of aliens and, in general, in the interest of international inter¬ course, legal aid, cultural solidarity, etc. As to the question, How can the state, as a " juristic ” person have rights and duties? we shall now try to explain what it means to attri¬ bute rights and duties to the state as a " person ” (without entering into the very intricate theories of "juristic persons”). These rights and duties are: 1. Those which are founded on international law; e. g., by virtue of an international treaty state A claims as a right that state B treat the citizens of state A just as it would treat its own citizens. It is evident that a juridical unit, even if we attribute to it " personality,” cannot " claim ” or " treat ” because only a living being, e. g., a man, can do that. If we say that a " juristic ” person does " claim ” or " act ” then we are using either those two verbs or the term " person ” in a figura¬ tive sense. The right of state A to " claim ” and the duty of state B to " act ” in a certain manner, as in the cited example, really means this: Men appointed and authorized according to the rules of the state organization A may apply to men duly authorized by the state organiza¬ tion B with the request that this organization fulfill its aforementioned duty. This duty again is the duty of men, duly authorized according to the norms of the state organization B, to treat the citizens of state A in the same way as the citizens of state B. The independence of the states A and B appears in the fact that the men who, on the one hand, claim the mentioned rights, and the men who, on the other hand, ful¬ fill the mentioned duties, draw the power to act from their own organ¬ ization, according to which they have been appointed, and not from a THE NATURE OF THE STATE 39 foreign one. As it is thus left to every independent state (or better to say, to its supreme organs) to determine who will execute international rights and duties as a state organ, and as all the members of the state are very often, in a greater or lesser degree, liable for the exercise of these rights and duties,—it would be not only a long-winded and complicated task, but also an unnecessary and sometimes even impos¬ sible one, to enumerate all the organs who carry through these " rights ” and " duties,” or to mention all the people who are liable in case they are not carried through. Therefore it is for the sake of brevity and convenience that one speaks of the " state ” as having rights and duties, because only by the state organization is it determined by whom and how these rights and duties will be executed; so the state is personified as a human being who is obliged or entitled to act according to legal rules. But this we can do only in a figurative sense and for brevity of expression; we cannot understand the real relationship between state law and international law unless we are conscious of " actions of the state ” being only " actions of the state organs.” 2. As is generally held, the state also has certain rights and duties by virtue of its own law; according to the so-called " public law ” it has the right to demand obedience of its organs, its citizens, and also of other persons within its territory. It is not difficult to see that this obedience is due not to a fictitious " juristic person ” standing behind the law, but to the law itself, and that this obedience is completely dis¬ charged when they fulfill the juridical prescriptions (which are in reality always commands issued by duly appointed and legally acting organs). As to the duties which the state is supposed to have accord¬ ing to “ public law ” we must say that these duties are discharged by punctual fulfillment of the duties of state organs towards other people, e. g., by payment of legally fixed sums from an appropriated fund. The rights, on the other hand, which are supposed to be conferred upon individuals by " public law ” are simply legal titles for them to demand in a manner determined by law and involving set legal consequences, that state organs execute certain duties defined for them in the law. 3. Finally, the state is spoken of as a civil law person. This touches the pecuniary side of the state organization, for it concerns the state as an enterpriser who builds and runs railways, factories, etc., and buys and sells on the basis of civil law contracts. In such cases (which, however, do not always come under the cogni¬ zance of civil law only, but also under that of public law, for instance 3 40 A TREATISE ON THE STATE questions of taxes, salaries of officials, etc.) the state is considered as a mass of property, known also as " fisc,” which like any other pro¬ perty, enjoys the protection of the law. This mass is furthermore the only fund out of which certain obligations are to be paid. Taking it for granted that all property must be owned by some person and at the same time understanding that state property is not owned by anybody, the theory deemed it necessary to consider this property itself as a " person,” which has property rights and duties. This person is imagined to be only one side of the complete state personality or it is considered, as apart from this personality and also sometimes even as being opposed to it, as a special institution. The juridical idea of ownership, however, does not entirely apply to the case of state property, because the essence of ownership, from the juridical point of view, is that property must serve the interests of a definite person and that this person be able to use it or dispose of it as he pleases. Now, it is characteristic of state property that it does not serve the interests of definite persons who can dispose of it arbitra¬ rily ; state property can be disposed of or administered only as provided in certain rules. Private property is legally protected so that free disposal on the part of the owner is insured; state property is, it is true, protected by the same legal means, in order that nobody outside the state administration may appropriate this property, but, in addition to this, it is protected by other legal means also, which prohibit state organs from appropriating it to themselves. Thus, in the case of state property no property right exists at all, because the rule which is the determining factor for property rights, i. e., free disposal on the part of the disposer in his interest or in the interest of another person repre¬ sented by him, does not apply to it; at the same time the special purpose of state property is protected; this purpose is plainly indicated by the existence of a special administration which differs from the free exercise of property rights. Private property is a term indicating the purpose of a thing as being entirely at the disposal of the arbitrary will of a person (even including the right of destruction). State " pro¬ perty,” however is not ruled by any arbitrary will, but by fixed norms which imply a definite kind of administration, so that the legal purpose of the object becomes evident only through its administration. If, e. g., a state organ brings a suit in order to have a piece of ground acknowledged as state property, the claim means that the right of any person to private property thereon is to be denied and that, with regard to the legal management of this ground only such rules are to THE NATURE OF THE STATE 41 be applied as would apply to a special state administration (as state forests and mines) ; the demand of a private suitor, who claims as his a piece of property heretofore administered by the state, has precisely the opposite aim. If a person sues the state for a sum of money his claim (or the decision of a tribunal rendered in favour of his claim) means that a certain sum is to be taken out of the state treasure or the " fisc ” (this being a mass of pecuniary objects administered by special rules) and handed over to the suitor entirely and freely at his disposal, that is as his private property. Not only state property but any property ( e. g., of a church or of a community) that serves a specified and permanent purpose and whose administration is for this reason prearranged has such a character as we have just described. The theory, it is true, has invented a new term, " public property,” for application in such cases; but it would perhaps be better to avoid the term " property ” altogether whenever there is a question concerning objects whose free disposal in the interest of definite persons is forbidden. It must also be remembered that objects which are under state administration do not form a homogeneous group, but are divided into various groups each of which is administered according to different rules; one set of rules regulates the forests, another the railways, another the mines etc. The " person ” of the state is thus subject, at once, to several sets of rules; so, each of these various state administrations, which often are only in loose connection with each other, can be considered as a separate juristic person; and it actually happens that these administrations come into conflict and resort to the courts for decisions. So there might be in some country a state treasury administration which is authorized and even obliged to contest before a tribunal acts of other state administrations which are illegal or prejudicial to the pecuniary interests of the state. Thus one state administration, which has a juristic personality of its own, would be suing another state administration, which has also a juristic personality of its own. So we see how the state splits into several persons under the influence of just that theory by which it was attempted to explain the unity of the state, namely the doctrine of the " juristic person.” Therefore it is justifiable to doubt whether it is always necessary and practical to think of the totality of the state organization or of one or more of its parts as " persons ” when there is the question of their representation or of their legal defence. To " defend legally ” means to ask that a definite kind of administration be acknowledged or be set up. The state organ, by acting so, does not represent a " person ” 42 A TREATISE ON THE STATE behind this administration but that administration itself. If for exam¬ ple the state treasury authority sues another state authority before the court, which e., the court) is a state authority too, there are not two different " persons ” represented in conflict and there is not a third person, the court, which decides the issue; but there are men, authorized by the law itself, who defend different opinions, different views con¬ cerning the correct administration of a certain object; the opinion of the court finally prevails. The unity of all the branches of state administration appears however in the single state budget and further in the fact that the administrators of all the state administrations are appointed, directly or indirectly, by the supreme state organs and that they are responsible to them. But if a legally existing administration extends its authority even into these quarters, then it has to be considered as an autonomous unit which though subject to the state, nevertheless is distinct from it. It is not absolutely necessary to make use of the term " juristic person ” if we want to understand the unity of the state; but if we do use it we must keep in mind that this is only an abbreviation employed to avoid the cumbersome mental processes implied by the extensive complexities of certain juridical relations; we ought not to allow a mere figure to make obscure to us the real character of these relations. PART II. FORMS OF THE STATE General Remarks The form of the state, which is, as we know, the supreme juridical organization subject directly to international law, can be determined by a study of the supreme juridicial rules which are in force on the state territory. These rules are contained in the constitution, which may be written or unwritten. Amongst these rules we must count, first, those which determine how the constitution can be changed; for thus we determine what is legally the highest power in the country, namely the power which makes the constitution. But in order to under¬ stand the form of a state well, we must consider not only the constitu¬ tion-making power, which is exercised extraordinarily and not regularly, but also those other powers which are determined in the constitution and which are exercised regularly, especially the legislative power which is very similar to the constitution-making power, if it is not identical with it, as in England. The form of a modern state is further determined by the powers of those state organs which settle upon the manner in which the constitution and the laws are to be executed, which develop these norms by issuing other rules pursuant to them, and which give the supreme law a binding interpretation. Finally we must assign also to the head of the modern state and his legally appointed assistants (ministers, state-secretaries) the qualities of supreme organs; for they not only participate in what is concerned with the constitution or the laws issued thereunder, but their powers extend also to the province of international law. All these powers, taken together, make up what is with greater or lesser exactitude, commonly called "the supreme power”; this power, however, has not always been divided amongst several organs, but was, especially in earlier times, centralized in one organ, which was some¬ times a single person and sometimes an assembly of persons who decided by voting. Thus it became customary in very early times to determine the form of the state as monarchy, aristocracy, democracy,— according to the number of persons who exercise the totality of the supreme power. Aristotle says in his Politics, Book III, Chapter VII: ' It is evident that every form of government . . . must contain a supreme power over the Whole state, and this supreme power must necessarily be in the hands of one person, or a few, or many . . . 43 44 A TREATISE ON THE STATE We usually call a state which is governed by one person for the common good, a kingdom; one that is governed by more than one, but by a few only, an aristocracy . . . When the citizens at large govern for the public good, we speak of a politeia.” By the word politeia Aristotle meant what we today call a democracy; he did not use the term democracy in the same sense as we do, but employed it in referring to a distorted notion of the politeia in which the common people rule to the special advantage only of the poorer classes. Simi¬ larly, he called a government in which a monarch rules to his special advantage a tyranny; and an aristocracy which has degenerated into a government of a few for the special benefit of the rich an oligarchy. This division of state forms has, in general, been preserved through two thousand years in spite of the fact that some, like Machiavelli, reduced the number of state forms to two, namely monarchy and repub¬ lic, and that others, like Montesquieu, increased that number to four, namely democracy, aristocracy (the two forms of republican govern¬ ment) , monarchy and despotic government. But it seems that Aristotle himself did not consider his division an absolute one, because he says in one passage of his book that we " commonly ” call the domination of one person a monarchy, and in another passage that in a democracy the people are the " monarch.” It is also noteworthy that there were two kings at the head of Sparta, the Old Greek state. We can find similar cases among the old Germans. The classification of states according to the number of ruling persons suffices, if at all, only for absolute states, that is, for those forms of government where the " supreme power ” is concentrated in one organ, be this a monarch or an assembly of citizens enjoying political rights. In more recent times, however, the opinion has prevailed, that the supreme state powers, in particular the power of making the consti¬ tution and the laws, ought not to be exercised by one organ solely, but by several organs acting concordantly which are appointed as repre¬ senting the opinions of various groups, and that the interpretation of the laws with binding force ought to be made by independent tribunals. The form of the state depends now not only upon the method by which the supreme organs are appointed but also upon the way in which an agreement between them in making the constitution, in issuing laws and partly at least, in directing the state administration, is to be reached. For just these reasons the essential differences amongst modern states remain no more clearly apparent in the light of the generally adopted classification of states into monarchies and republics; FORMS OF THE STATE 45 nevertheless there is no objection to keeping the term " monarchy ” and the term " republic ” as attributes of state forms, which, however, are characterized by still other and more significant elements; these terms serve to explain how the supreme organ, in the sense of the supreme representative of the state, is created. The manner in which the supreme organs are appointed and in which they cooperate is also the deciding factor in the classification of a state as a unitary state or as a composed state. When these organs are appointed without consideration of the particular divisions of the state territory, then we speak of a " unitary state,” We speak, on the other hand, of a " composed state ” when the supreme organs are, at least partly, composed of or delegated or appointed by autonomous organizations which are subject to the common state organization. These lower organizations may be formed by people of a certain class, or a certain profession, or a certain descent, as was the case in the medieval feudal state; yet even today there is a growing tendency to let some of the supreme organs be composed not of delegates of the nation in general, but of delegates of particular professions. Such a state would then be composed of, or federated by professions with or without regard to any divisions of the state territory (professional repre¬ sentation; see the chapter on the "corporate state”). It is, however, true tliat the idea of a composed state has in recent times been carried out mainly only in connection with the principle of territorial autonomy; that means this: The supreme state powers, particularly the power of making and revising the constitution and the legislative power, can be exercised only with the cooperation of the organs (or even of the people themselves endowed with political rights) of autonomous territorial organizations. This happens to be the case especially in those states which came into existence through a union of previously independent states or in which the conditions of their component parts differ considerably from those of each other part. As to the extent to which these autonomous organs cooperate in exercising the supreme powers, there are indeed many differences, ranging from one extreme, the unitary state, through the federal state, to the other, the confedera¬ tion, a structure which represents a union of independent states and not a single state. 46 A TREATISE ON THE STATE I. THE STATE WITH A SOLE SUPREME ORGAN WHICH IS NOT BOUND BY ANY LEGAL PROCEDURE (DESPOTISM) The state organization is despotic when the supreme power is lodged, without constitutional limitation, in the hands of a single organ. How¬ ever, the mere fact that such a powerful supreme organ exists does not necessarily mean that the lesser powers, which are subordinate to the supreme power, cannot be separate and distinct from each other; that, for example, in such a state the judiciary cannot be, partially at least separate from the administration. If the supreme power is, thus, entirely unlimited, we can hardly speak of the existence of laws or of a constitution. For unlimited power of the supreme organ means: 1) that there is no other organ whose cooperation is necessary in order to execute the supreme power; 2) that the supreme organ is not limited or bound even by his own previous acts, which he can change whenso¬ ever and howsoever he desires. This means further, that there is no form prescribed according to which the supreme organ creates the supreme rules; he therefore can interfere in or overrule the acts of all other state powers. The only rule, which is at once the constitution and the law, is this: The will of the despot, whenever and in what¬ ever form expressed, is valid as law. This was the state form of several monarchies in earlier times. But it would be inexact to say that this form can exist only in monarchies. Despotism exists whenever one organ possesses the supreme power to an unlimited extent, whether or not that power be hereditary as is the monarchical power; for instance the president of a republic or a cabinet minister who becomes a dictator can be a despot. Likewise a parliament can acquire despotic power; and as an example we mention the French Convention which existed from 1792 to 1795. And finally even the people themselves or rather one class of the people can become despotic; in such cases we speak of a military dictatorship or of a dictatorship of the proletariat, which is, according to some, a preparation for the socialistic state. The supreme power in a despotic government is, although without limits vested in the despotic organ, so far organized that it is at least known who exercises this power. For this reason we must consider the despotic government, since it is not an anarchy, as being within the scope of a classification of state forms. There is, it is true, no legal security in a despotic state; therefore Montesquieu says that the principle of despotism is fear. FORMS OF THE STATE 47 II. THE STATE WITH A SOLE SUPREME ORGAN WHICH IS BOUND BY LEGAL PROCEDURE 1. The Absolute Monarchy In such a state the monarch alone holds the supreme power and his will is the supreme law; but before it can be regarded as law, this will must be expressed according to a definite form. It follows from this that the monarch is not allowed to change in whatever way he pleases the laws which he has given; he can change them only by following a set procedure. This procedure might be, for example, that he must, before giving a law, hear the advice of ministers or even of an elected body, and further, that his commands must be published in some prescribed manner before they can have the force of law, etc. The stability of the law in the absolute monarchy is, to a certain degree, secured by these forms alone. One is forced to admit here that the absolute monarchy in some of the most civilized European countries, as in England, France and Germany, has created a good administrative organization which has been adopted not only by later monarchies but also by republics which were established on the same territory. The absolute monarchy has besides left a precious heritage in the form of excellent codifications like those of the " Code Civil ” of Napoleon and the Austrian code of civil law. There is, however, one great danger in the absolute monarchy; for the legal rules therein are ultimately dependent on the monarch himself, who is bound, if at all, only to hear the advice of other organs; and though he may be bound to observe certain forms in doing so, he him¬ self has nevertheless the power to change the rules. The monarch also can influence without restraint the work of all state organs, each of whom is subject to him; a similar effect can be obtained through his power of interpreting the laws and of thus changing the meaning of them without changing the text,—every organ being obliged to act according to the monarch’s interpretation. One of these possibilities has proved in its realization particularly fatal; this is the case of " cabinet justice,” i. e., a judiciary which was not conducted indepen¬ dently, but according to the direction of the monarch. On " caesaristic monarchy,” see p. 121. 48 A TREATISE ON THE STATE 2. The Absolute Republic (Democratic and Aristocratic) In this state form all we have just said about the monarch can be applied to the people. We speak of an " aristocracy ” when the ruling group of people is small in number and when its members are qualified by wealth or by birth or by profession (e. g., ecclesiastical or military persons of a high rank) ; and of a " democracy ” when this ruling group is numerous and not so qualified. The will of the people (viz., of the ruling group) is the supreme law; and the consent of no other state organs is necessary. The assem¬ bly of the people convoked in an established manner decides all im¬ portant questions and exercises the supreme power alone and directly by voting. In the assembly everybody has equal rights; the idea of representation of the people is entirely absent. Officials, as far as they are needed, are appointed in a way that insures the perfect equality of all citizens. Therefore the only means of appointing them are by lot or by " each one taking his turn ”; that means that it is left to chance who will exercise official duties or that these duties are performed by everyone in turn. All are considered as equally capable. The officials are not elected; for the idea of elections means that the best are chosen out of several and this involves the idea that all are not equally capable. Election recognizes, in contrast to complete democratic equality, the existence of some aristocratic principle. Aristotle says in his Politics, book IV, chapter 9: " It seems that appointment of officials by lot is in conformity with democracy, and appointment by election, with aristocracy.” Some ancient Greek states were absolute or direct democracies, e. g., Athens during the time of Pericles; this was also the case with Rome in earlier times. But even in these states equality was accorded only to fully qualified citizens and not to all inhabitants. Serfs and aliens, as well as women and children, were excluded from participation in government. Only the adult male citizen participated in government. Equality in the sense of the right of participating and voting in the people’s assembly and of exercising duties as an official was thus limited to a comparatively small group of the entire population; therefore, from the viewpoint of modern democracy, which does not recognize slavery and which accords political rights, at least in part, to women, we would consider the ancient democracy rather as an absolute aristocracy. This form of state did not last long. At the end of the ancient era there was none and during the middle ages there were only a few FORMS OF THE STATE 49 examples of direct democracies and aristocracies (some Swiss cantons and some towns). In recent times, however, Rousseau advocated the direct government of the people. This was in consequence of his theory of the supreme power of the general will which cannot be either transferred or dele¬ gated. In his opinion, the elected deputies can prepare laws but they cannot finally make laws. Rousseau’s opinion was perhaps influenced by the organi2ation of some cantons in his Swiss country. These were the 'cantons Uri, Glarus, Unterwalden and Appenzell, where the people’s assembly, the so-called " Landsgemeinde ” performs the high¬ est governmental acts insofar as such acts enter into the power of the canton which is a part of the Swiss federal state. But even without taking into consideration this restriction the small Swiss republics referred to are not in the same degree absolute and direct democracies as were the ancient ones; for their officials are elected and there are, besides the supreme organ, i. e., the people’s assembly, still other bodies (Landrat, Kantonsrat, Grosser Rat) with important powers. The direct democracy does not fulfill modern needs. The assembly of the people would be too large, too unwieldy and thus unequal to the task of solving complicated problems. Direct legislation and govern¬ ment by the people could not, in its pure form, be maintained even in the mentioned Swiss cantons in spite of their smallness. The absolute organ, unable of course to effect all the business of the supreme power, must appoint agents to substitute for him. Substitu¬ tion or delegation is not in itself opposed to the idea of absolute gov¬ ernment carried out by one organ, provided that the delegated organs are bound to obey the orders of that organ by whom they are appointed and for whom they substitute. Such was the situation of the officials in the real type of absolute monarchy. Their status of officials of the monarch changed only slowly to the status of state organs who were subservient to the law; this change took place first in the status of judges. We notice in the absolute aristocratic republic also the institu¬ tion of substituting deputies with a so-called " imperative mandate.” Under such a system the organ which gives orders and delegates power remains absolute, because his substitute is responsible to him and obliged to obey his orders. The logical consequence of this situation is that he can recall his substitute. The voters in some Swiss cantons can indeed recall the whole legislature, and, in some cantons, even the whole executive body elected by the people (the governing council). In some of the North-American states the voters have the right to re- 50 A TREATISE ON THE STATE call all elected organs, legislative (the individual representatives), administrative, and judicial. But there is another remaining phase of the absolute democracy which in a considerable number of modern states is of still greater importance: the " referendum,” i. e., the direct cooperation of the people in legislation. This cooperation, however, is commonly exer¬ cised only in connection with the legislative procedure of elected parliaments and only in the form of people directly voting on projects of law; there is no common deliberation as there is in the direct democracy. But before we deal with this remaining phase of absolute democracy we must remark that the state form described as an "aristocratic repub¬ lic ” has not vanished entirely. If, as we shall demonstrate later, we consider as a republic any state whose head is elected, then we had best classify a state whose head is elected by a small group of men (who, however, do not hold their power through election) as a kind of aristocratic republic—and that even in the case when the elected head, through his election, is endowed for life with an absolute power; such a state, though still a republic, is on the verge of being an absolute mon¬ archy. A state of this kind has only recently been created, viz., the State of the Vatican City, established in 1929 (see the last chapter). For the head of this state is for the time being the Pope of Rome, who is elected. Though as the head of the Roman Catholic Church he wields the spiritual power during his life-time, and, in consequence of it, also the supreme temporal power in the State of the Vatican City during the same time (Art. 1 of the fundamental law of June 7th 1929 stating: " The sovereign Pontiff, sovereign of the State of the Vatican City, has the plenitude of the legislative, executive and judicial power”), we hold this state to be an " aristocratic ecclesiastical republic ” and not a monarchy, for its head comes into office not by way of heredity or appointment by its predecessor, but through election by high ecclesias¬ tical dignitaries (cardinals) ; and during a vacancy in the Holy See, according to the article quoted, the power of government in the State of the Vatican City belongs to the " Sacred College ” (i. e., the college of cardinals, which also elects the Pope) ; but it can legislate only in cases of emergency and for the period of the vacancy, such legislation of the sacred college retaining its effectiveness only for that time; how¬ ever, if confirmed by the next Pope elected, it continues to be in force. But this classification of the Vatican State and of its head as the FORMS OF THE STATE 51 wielder of temporal power is not meant to extend to the spiritual power of the Pope as the head of the Roman Catholic Church, which power he possesses not jure humano but jure divino. 3. The Referendum (a Link Between the Direct and the Indirect Democracy) " Referendum ” in the sphere of constitutional law means the direct cooperation of the people in deciding important questions, especially such as concern the exercise of the supreme power (revision of the constitution). Referendum literally means: to be reported. This term is also used to indicate the report by which an inferior organ requests of a superior instructions for settling cases that he can not settle by himself. The idea of the referendum is connected with the idea of the social contract, which is that the fundamental law of the state organization must be fixed by agreement of the entire nation. Thus we can under¬ stand that Rousseau, the champion of the direct and absolute democ¬ racy, advocated the principle of the referendum: "Sovereignty cannot be represented for the same reason that it cannot be transferred. The essence of sovereignty is the general will; will, however cannot be represented; it is itself or it is something else! There is no middle way. The delegates of the people therefore cannot be its representatives; they are merely its commissioners; they cannot settle any question definitely. Any law that is not ratified by the body of the people is no law at all. The English nation thinks that it is free, but it is wrong. It is free only when electing the members of parliament; when they have been elected, the people are slaves, they are nothing.” 1 The first French Constitution of the year 1791 did not, in this respect, adopt the teaching of Rousseau, but that of Montesquieu, who pleaded for the principle of representation; the Constitution of 1793, however, was submitted to a vote of the people. In the United States the referendum is adopted for the revision of the constitutions of the particular states, members of the Union. If a total revision is proposed by the ordinary legislature then in most of the states the people must be asked to decide whether a revision is to be made or not; if the answer is affirmative a special convention is elected and at this a draft of the new constitution is drawn up; this draft must be again submitted to the people for final approval. In 1 Contrat Social, Book III, Chap. 15. 52 A TREATISE ON THE STATE the case of an amendment (/. e., change only of one part or another of the constitution) there is no convention, but the acceptance of the amendment by the legislature is often subjected to certain restrictions or conditions such as a qualified majority or a vote of two consecutive legislatures; such an amendment must also have the final approval of the people (except in the state of Delaware). However, in the federal constitution of the United States, no refer¬ endum is provided for. Art. V reads as follows: "The Congress, whenever two thirds of both houses shall deem it necessary, shall pro¬ pose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided . . . that no State, with¬ out its consent, shall be deprived of its equal suffrage in the Senate.” Thus, a revision of the Constitution is made very difficult and compli¬ cated, but no vote of the people is required. Besides the referendum obligatory for revision of the constitution (constitutional referendum) some American states have also a referen¬ dum for laws (statutory referendum) of a special kind, especially for those laws which lay financial charges upon the citizens or which engage the credit of the state (financial referendum). The referendum is very widespread in Switzerland. One of the features of this institution sprang from an old' custom in the Swiss " cantons,” that the people should be asked to express their opinion on serious questions. Another feature can be traced to a procedure followed by the old union of the Swiss cantons: Every canton sent its delegates to the session of the union with binding instructions; if, however,' those delegates deemed it necessary to act in a way which was not provided for in the instructions, they first had to return to their canton and there report; then they went back with their new instruc¬ tions to the session of the union where the final decision was made. A similar practice obtained in some cantons at the gathering of the representatives of the communities. The ideas of Rousseau and of the French revolutionists gave nurture to these old customs which had grown up in Switzerland itself; in fact, the Swiss Constitution of 1802 was submitted to the vote of the people. The referendum is called compulsory (obligatory) when it is pre- FORMS OF THE STATE 53 scribed by the constitution for certain matters; such a referendum is now required in Switzerland for revisions of the constitution of the Union and of the cantons; in some cantons also it is required for ordinary laws. The referendum which is not prescribed is called facultative, because it is optional; this must be discerned from the con¬ sultative " referendum ” by which the people upon request of the legislature, express their opinion, which, however does not bind the legislature. Usually we speak of a facultative referendum only when the people are entitled to ask for it, but sometimes also if it is evoked by the parliament. The facultative referendum in the first instance places the right of exercising the veto in the hands of the people, if the majority of the people (i. e., of the really choosing electors) vote against the proposed law. Such is the procedure in Switzerland: The law accepted in parliament is published; but a certain number of voters have the right to ask within a certain length of time that the law be submitted to a vote of the people. When the time has elapsed and no such demand has been made then the law comes into force. If, however, a referendum is required, then it depends upon the result of the vote whether the proposed legislation will become law or not. The official registration does not take place before the people’s agreement. According to the Swiss Constitution of 1874, now in force, a referen¬ dum has to be held on federal laws or federal resolutions which are not urgent, whenever 30,000 voters or eight cantons desire it. In the year 1921 this provision of the Constitution was extended to apply also to international treaties, which are to be in effect for an indefinite time or for more than 15 years. Another kind of direct cooperation by the people in legislation is called " the people’s initiative.” That means that a definite number of citizens have the right to ask that the parliament make a law on a certain subject; or that those citizens themselves can submit such a law. Thus, a definite number of citizens have the right of initiative, which, under the representative system is vested only in the government and in the members of parliament. In many states of the United States of Amer¬ ica the initiative is adopted for amendments of the constitution as well as for ordinary legislation; this initiative may be either " indirect,” i. e., that the legislature must act on it first, or " direct,” i. e., that the popular vote is taken directly upon the initiative. Popular initiative and refer¬ endum exist also in many municipalities of the United States of America. In the Swiss cantons the people’s initiative exists and is employed in amending cantonal constitutions and also, to some extent, in ordinary 54 A TREATISE ON THE STATE legislation; but in the Swiss federation it is employed only when an amendment of the federal constitution is in question. In 1891 the referendum was combined with the people’s initiative in the following way: A total revision of the federal constitution can be made by the federal legislature, if both its houses, namely the national council and the state’s council, agree. But when only one chamber (and not both) agrees to a revision of the constitution, the question of revision or no revision must then be brought before the people. This also holds when a minimum of 50,000 Swiss citizen-voters demand a total revision (and thus exercise the right of initiative). If the majority of voting citizens cast their vote for a total revision, then both chambers have to be elected anew in order to draft a new constitution. But in no case can any revision come into force until it is accepted by a majority of the cantons and of voting citizens. A partial " revision ” (amendment) can either be made by the federal legislature or brought about by the people’s initiative, i. e., on the demand of 50,000 citizen-voters that certain articles be changed or new articles inserted; the form of the initiative is either a general suggestion or an elaborate draft. If only a general suggestion is made, then the legislature must work out a draft in accordance with the suggestion, provided, however, that both chambers accept the sugges¬ tion. If they do not do so, then the people must be consulted; then if the people vote in favor of the amendment, it must be worked out by the federal parliament according to the people’s opinion. The partial " revision ” also becomes effective only when it is finally accepted by a majority of voting citizens and by a majority of the cantons; this rule applies likewise when the initiative has been made in the form of an elaborate draft and when the federal parliament has accepted it; if, however, this body does not approve the draft, it may, when it submits the draft to the vote of the people and of the cantons, propose that they reject it, and it may even at the same time submit a new proposal; but in any event the aforementioned majorities decide the question finally. The German Constitution of 1919 also adopted the referendum and the people’s initiative as methods of legislation. There are two legis¬ lative chambers: the "national assembly” (Reichstag) and the "state council ” (Reichsrat), the former being representative of the entire German people and the latter of the particular German " countries.” The role played by the referendum in case of a disagreement between FORMS OF THE STATE 55 both chambers will be explained in the chapter dealing with the fed¬ eral state (p. 99). The President has power to submit to the peo¬ ple’s vote any bill passed in the " Reichstag ” if he does so within one month. But a resolution of the " Reichstag ” can be annulled through a referendum only if the majority of those who have the right to vote take part in the referendum. A bill, whose publication has been post¬ poned upon the proposal of at least one third of the " Reichstag ” (for two months), must be submitted to the people’s referendum if one twentieth of those who are entitled to vote express such a desire. If a bill proposed by one-tenth of those entitled to vote (initiative) is not passed by the “ Reichstag ” without change, the whole question must be decided by a referendum. However, the President alone may call for a referendum on certain bills of a financial character. The constitution may be altered: 1) By the legislature; but, a two-thirds majority is required, and, in the " Reichstag,” in addition, a quorum of two-thirds. 2) By means of a referendum which must be held upon the initiative of the people, duly expressed; but, to amend the constitution, a majority vote of all those who are entitled to vote, is necessary. A referendum, moreover, must be held if the " Reichsrat ” objects to an amendment of the constitution passed in the " Reichstag ” and if it asks for a referendum within two weeks. Referendum and initiative of the people have been adopted also in the particular " coun¬ tries ” of the German Empire. These methods, which permit the people to legislate directly, are now provided, in some form or other, in the constitutions of many states. This has been brought about in a number of countries since the World War, e. g., in Austria; according to the constitution of the Czechoslovak Republic of 1920 the government, if unanimous, has the right of submitting government bills which the parliament has rejected to a popular vote; this, however, does not apply to govern¬ ment bills on constitutional amendments. It seems that these methods have been favored by the development of democracy in recent years. The chief argument advanced for them is that, through direct legislation of the people, a check is placed on the arbitrary power of parliament. But it has been advanced against them that while the mass of people are fitted to elect legislators, they are not fitted to vote on bills. It is interesting to note that in some countries the referendum has shown itself to be rather conservative. 4 56 A TREATISE ON THE STATE III. THE STATE WITH SEVERAL SUPREME, COOPERATIVE ORGANS A. The Older Form: The Feudal State 1) The Feudal Monarchy In the exercise of the supreme power, the estates in the feudal mon¬ archy were limited by the monarch, and the monarch by the estates. The estates, however, were also limited amongst themselves, by each other. These estates were made up of organized classes, namely the nobility, the clergy, the townspeople, and sometimes also of the peas¬ ants; their members enjoyed special rights (privileges) ; to the rest of the population, non-members of the estates, were not accorded political rights; their dependence upon the estates had the character of a bondage. The estates were separated from each other. It was very difficult to transfer from one estate to another. In some estates membership was determined by birth; hence most of them, including the townsfolk ( " bourgeoisie ” ) had an aristocratic character. The estates differed from each other in privileges and social rank. Some of them were further divided internally; there was, for instance, the higher and the lower nobility (gentry). In the earlier period of the feudal monarchy, only members of those estates which were interested in the subject under discussion attended or were even allowed to attend the general deliberations with the monarch. But in the later period the members of the particular estates became so numerous that it was impossible for all of them to come to these gatherings; they therefore elected and delegated depu¬ ties. These deputies represented the interests of their fellow-members (belonging to the same estate) who gave them instructions under an imperative mandate and who could also recall them; thus, they were not representatives of the interests of the whole state. The other factor, a rival of the estates, was the monarch. He asked for public needs certain tributes from the estates which, however, were, as a rule, willing to meet his desires only in exchange for various con¬ cessions. The more the monarch asked (especially money and soldiers), the more of his power he was forced to yield to the estates. The mon- FORMS OF THE STATE 57 arch, on the one side, and the estates, on the other, thus resembled two bargaining parties. As there were no taxes in the modern sense, the monarch was obliged to provide for the necessities of the state either with the revenue from the domains (crown-lands), or with what the royalties (certain rights connected with an income) yielded or, in an extraordinary way, with the grants made by the estates. Govern¬ mental power, in the modern sense of the term, was exercised exten¬ sively not only by the monarch but also by the estates. They demanded and collected taxes from their subjects; they had their own armies and sometimes even their own legations in foreign countries. They defended the interests of their class (order) against the monarch, called to account his counselors, and even fought with him. At any rate, they were to a great extent independent of the monarch and exercised administrative, military and judicial power over their sub¬ jects; only the highest jurisdiction was reserved to the monarch, but even this not without exceptions. In these struggles between the monarch and the estates one or the other finally was returned the victor. If the monarch won, then the feudal monarchy was turned into an absolute monarchy; if the estates won, then the feudal mon¬ archy became a feudal republic. The first was the destiny of the French Kingdom, the second, of the German Empire. 2) The Feudal Republic This state form differs from that of the one just discussed in the fact that the powers of the estates in this case are not limited by monarchi¬ cal powers; in the final analysis they alone exercise the supreme power. The feudal republic exists even in the case when the estates elect a head of the state and call him " king ” or " emperor.” For these " kings ” do not acquire their power in a hereditary way as real mon- archs do, and do not transfer it in this manner. On the contrary they, as well as their successors, are elected like presidents of a repub¬ lic. The eligibility was, it is true, limited to the members of certain estates or even of certain families, and the electors often were the representatives of the most eminent estates only. But it is just for this reason that such a state form must be classified as an aristocratic feudal republic. This applies especially to the German medieval state, not only because many of the German emperors were entirely dependent upon the estates, especially upon the highest ecclesiastical and secular peers, but also because those peers elected the emperor (peer-electors). 58 A TREATISE ON THE STATE B. The Newer Form: The Modern State a) The idea of representation and of separation of powers i. On representation The absolute monarchy in France and the feudal republic in Ger¬ many were both products of the antagonism between the monarch and the estates. In England this antagonism evolved in a special way and, finally, brought forth institutions which were determining factors in the formation of the modern state. The struggle between the mon¬ arch and the estates need not always culminate in complete victory for one side or the other. It can lead to compromise, a change of attitude, not only toward each other, but also toward the people whom they govern, so that they cease to consider the administration of the state as their personal right and at length subordinate themselves to the interests of the state in general. Thus public affairs cease to be performed primarily for the benefit of the person who performs them; the right turns into a duty, the power or authority becomes service, monarch and estates begin to consider themselves as members of one great, common organization. This change of attitude has been briefly expressed thus: that he who formerly was vested with rights became an organ of the state bound to work for public, and not for private, interests. One of the most important factors in this process was the gradual wane of the imperative mandate which has been, of course, for a long time an institution in England as well as in other feudal countries. Owing to the increasing volume of state business, the feudal parlia¬ ment, which was bound by imperative mandates, was in many cases unable to transact all its business or, if it really did finish its work, could not give an account of it to its constituents. The instructions (mandates) therefore became very broad; the delegates of the estates gained more freedom of action; but in spite of the fact that the dele¬ gate had no mandate for a particular question, the fiction that he represented the will of the people who elected him was maintained. Not only the number but also the character of the agenda was such that they could not always be performed on the basis of binding instructions. The English parliament was not merely a legislative assembly but occupied itself, and had done so from very early times, also with important administrative and judicial matters. It is very likely that amongst these questions were some in which not all FORMS OF THE STATE 59 of the constituents of the delegates, who dealt with these questions, were interested. But even when they happened to be interested, their wishes could not be taken into consideration to the same extent as in questions subject to legislation, because legislative work permits of a greater use of discretion than administrative or judicial work. The administration and the judiciary work on the basis of law already in force; for this reason administrators and judges appear to be repre¬ sentative of the law to a greater degree than the legislators insofar as the latter are not so strictly bound as the former. Now, it is just this legal constraint which is the discriminating mark of the state organ. If a man in performing one part of his business is conscious of his obligation to observe objective law and the common interests expressed by the law, it is only natural that this consciousness will reassert itself when he is doing other work with which he is entrusted, for instance legislation. This bit of psychology must be taken into consideration in dealing with the lower as well as the upper chamber of the English parliament; as to the latter, one would perhaps be inclined to think that it represents certain classes, especially the nobil¬ ity, or even, that each Lord represents only himself. Yet, the House of Lords was in very early times and is still now the highest tribunal in the land. As for the House of Commons, we must not forget that there were mixed up in it members of the lower nobility and of the townsfolk (burghers) ; for these reasons alone the house was compelled to represent broader interests than the interests of one class alone. The change in the situation of the members of parliament from mere deputies of their constituents to state organs is reflected in a very characteristic manner in the financial side of their profession, that is in the question of who pays their expenses. In the beginning of the parliament (Edward I. 1272-1307) persons who did not have the franchise were exempt from contributing payments for their deputies. Petitions were presented several times beginning with the reign of Edward III. (1327-1377) until Henry VIII. (1509-1547) asking that the sum due for the aforementioned allowances be apportioned among the entire population of each county. In the 14th century the idea gained ground that the contributions for the payment of the members of parliament are a common tax that is to be paid by the entire popu¬ lation of the electoral district. And so the idea arose that the deputy is the representative of all the people in his electoral district, and not only of the electors. It is difficult to say what in this process was 60 A TREATISE ON THE STATE the cause and what the effect (the same difficulty appears in many other questions of historical evolution) ;—whether the conception that the deputy represents the entire population was the cause for the population having been considered obliged to remunerate him,—or whether the fact that the entire population paid these expenses begot the idea that the deputy is the representative of the entire population. One could urge the following argument for the latter explanation: The allowance, especially because of the great travelling expenses, was very high, and this, of course, was true particularly in countries a great distance from London; the local population was afraid of such a burden; for just this reason some remote counties sent no delegates at all to parliament; but in allotting these sums to a great number of people relief from the burden was found. The connection between the payment of parliament members and the idea of representation is illustrated by this incident: when in the beginning of the 15th century, the freeholders who lived on franchises ( " immunities ” ) refused to contribute to the payments of the deputies, they were answered that these deputies were elected just as much for the " im¬ munity ” as for the other parts of the counties throughout the king¬ dom. Finally also the king was considered as a representative of the nation or of the state. This had already appeared in England in the old distinction between the king and the " crown.” The fictitious and abstract idea of the " crown ” means the power represented by the monarch. He does not exercise the governmental powers in his own name but on behalf of and as a representative of the " crown.” The idea of such a representation was applied even to the absolute monarch, and thus so much the more so to the monarchs of a con¬ stitutional and parliamentary regime, under which some rights, still attributed to the " crown,” are not exercised by the king, but by other state organs. The institution of " imperative mandates ” was set aside in France later than in England and not, as in this country, through a long historical process, but suddenly by the revolution of 1789. In this year the instructions which the deputies of the estates got for their work in their assemblies (etats generaux) were abolished. It was said in the constitution of 1791 that the deputies who are elected in the districts, are not representatives of the particular district, but of the whole nation, and that no mandate can be given to them. The French theory of the representation of the nation, which is still very FORMS OF THE STATE 61 widespread not only in France but in many other countries also, was created in these revolutionary years. However, the idea of a mandate bestowed upon the elected deputy was not abandoned by this theory but only changed. The elected deputy is not a mandatary of his electors or of his electoral district, but the entire parliament is con¬ sidered as the mandatary of the entire nation, that is of the totality of voters. The deputy is not responsible to his electors, but the entire parliament is responsible to the totality of voters. Such a mandate is called a representative mandate. The nation is represented by the parliament. The objection was raised against this theory, that in reality there is no juridical relation between the parliament and the nation and that therefore the term ” representation ” has only a political meaning. The nation is merely an organ which by means of elections creates the legislative organ (the parliament), but does not give it a mandate. The members of parliament do not represent anybody; they draw their powers directly from the law (this is the opinion of the German Professor Laband). There must be, according to another opinion, some connection between the parliament and the nation, otherwise the parliament would be a kind of oligarchy; the nation, i. e., the voters, are to be considered as a primary state organ, whereas the elected delegates, i. e., the parliament, are an organ of this organ and thus a secondary state organ (opinion of Professor Jellinek). To this opinion, which seeks to establish a juridical relation between parlia¬ ment and nation, the French jurist Duguit objects, that it comes into conflict with the assertion maintained by its advocate himself, namely that there can be no juridical relations between organs. Duguit holds that the basis of representation is the solidarity of the represented people and their representatives; this solidarity creates "situations” of objective law, but not subjective rights. Hauriou, on the other hand, considered elections to be a kind of investiture, and not a delegation, etc. Whatever the theoretical explanation of the idea of representation may be, it played an important role in the great movement that freed the administrators of state affairs from a mere personal dependence upon those persons who entrusted the state administration to them; this movement changed the officials of the monarch into state officials, that means into organs who, though appointed by an individual, do not serve this individual, but serve state interests, the public welfare. The same idea developed in the English theory and practise concern- 62 A TREATISE ON THE STATE ing the parliament and was better expressed there than in the French theory of the representative mandate. Blackstone said in his Com¬ mentaries, Book I, Chapter 2, p. 159: " And every member, though chosen by one particular district, when elected and returned, serves for the whole realm; for the end of his coming thither is not par¬ ticular, but general; not barely to advantage his constituents, but the common wealth ...” The important point is that public service is emphasized in the work of members of parliament; they do not exer¬ cise rights either of their own or of their electors; it is their duty to serve as well as they can the interests of the commonwealth. What then is the juridical link between the deputy and his electors? It consists merely in the fact that they have elected him. In this case, as in the case of every organization, the question, which person shall be entrusted with a certain task, is extremely important. The voters themselves solve the question who shall serve the public interests (and thus, of course, also the interests of the voters) in legislation and in other parliamentary work. But it is left to the elected mem¬ ber to choose how he shall serve these interests. There is no other juridical link between the voters and the persons they elect, save the election itself. Of course, in solving the question of persons there are indicated also the principles according to which the elected are to serve the public interests; this fact explains why the deputies are politically dependent upon their voters. There has appeared, how¬ ever, in modern parliaments another dependence, namely party depen¬ dence; the liberty of the deputy is jeopardized often not so much by his dependence upon his constituency as by the severe party discipline. If we seek for a closer or more extensive juridical relation between the electors and the elected than we have just pointed out, then we should either enter into unnatural constructions or we should return to the imperative mandate, which, it is true, has in recent times again been advocated. The idea of representation is, though regularly, not necessarily con¬ nected with elections; in the sphere of legislation this idea means that the interests of those persons who do not participate in the creation of the law, must be considered by the legislator. A customary way of achieving this aim is through elections. The purpose of elections is that those people in whose interest law is created may have an opportunity of choosing the members of the legislative body. Elec¬ tions, therefore, are an essential institution in modern democracies. But democracy is not always carried out in all parts of a state in FORMS OF THE STATE 63 the same degree. The native population of many " colonies ” which are ruled by modern democracies is not represented in the parliament of the ruling country and, therefore does not participate in the colonial legislation. We speak rightly then of the " ruling ” country which "possesses” the colony; and the more does this become so, when, as it often happens, rules for the colony are given by decrees of the government and not by laws for which the consent of the parliament is required, democracy thus being limited to the ruling country; colo¬ nies, insofar as they lack autonomy, are, in most cases, ruled auto¬ cratically. Democracy requires that the right to vote be granted to the maxi¬ mum possible number; this means that all those people whose interests can be the object of legislation must have their share in electing the legislators. As, however, the mere creation of rules is not yet a guarantee of their actual execution, the democratic idea has further in many countries produced the power of the parliament to control the execution of the laws in the field of state administration. When this is the case, the heads of the different branches of the administra¬ tion (the state ministers) are responsible to the parliament. And a further consequence of this system is, that the head of the state, who is not responsible to the parliament, must have, in the performance of his official duties, the cooperation of a responsible minister, this cooperation appearing especially in the minister’s countersigning the acts of the head of the state. The claim that the right to vote may be granted to everybody equally is only a consequence of the principle of general equality before the law which is the negation of the inequality and the privileges of the feudal system. Therefore the principle of equality has been inserted in the constitutions; in connection with the principle of equality and of liberty, its derivative rights as well as the rules which guarantee those rights to the individual have been codified; thus a set of so-called " rights of the citizen ” and " rights of man was formed. The conformity of the administration to law is secured not only through the responsibility of the heads of the administration but also by the institution of administrative courts; and the conformity of courts in general to law is best secured if they are independent of other powers; this independence has been expressed particularly by the principle of separation of powers. So we have briefly enumerated a series of institutions which are in relation to each other and which characterize many of the modern 64 A TREATISE ON THE STATE states. We shall now deal in particular with the principle of separa tion of powers, as it was of great significance in the development ot the modern state. It is worth while remembering that the ancient Romans did not find, as was the case in more modern times, a remedy for absolutistic government in the aforementioned principle. They tried to check absolutism in another and very interesting way: not by dividing the powers of the state amongst several persons and thus giving them separate jurisdictions, but by investing different persons with the same jurisdiction. During the period of the Roman republic there were created for the exercise of important state powers a number (usually two) of equal organs who were invested with precisely the same jurisdiction, for instance two consuls. They were entirely independent of each other, neither being able to command the other; but either could annul the other’s acts through the “ intercessio.” ii. On separation of powers Attempts to classify the spheres in which state organs might exercise the powers vested in them, were made in very early times. Aristotle distinguished three parts of the state organization: 1. To /3ov\ev6[x,evov irepi t < 5 v Kocvoiv- 2. To irept rbs ap^as- 3. To SiKa^ov- He placed the first part on the highest level. But his classification does not coincide with the modern division of state activity into legis¬ lative, administrative and judicial power. According to Aristotle, the first part comprises deliberation not only on legislative but also on those matters, which we would classify as belonging to the administra¬ tion or to the judiciary. And the second part includes all that con¬ cerns the state magistrates in general, whereas the third part is con¬ cerned only with the courts called SiKaarppia- But Aristotle does not carry out this classification strictly, nor does he demand either that those powers be entirely separated or that they be independent of each other. Later on, the jurisdiction of the state was classified in other ways. The doctrine which John Locke expounded in his famous " Two treatises of civil government” (1690) is especially important in the development of the modern theory. Locke distinguishes the legisla¬ tive from the executive power, which latter consists in the execution of laws and therefore is subject to the legislative; he does not speak of the judicial power explicitly, but demands that all powers be subor¬ dinate to the legislative power. The third power, according to J. FORMS OF THE STATE 65 Locke, is the one which decides matters of war and peace, which makes international treaties, and, in general, handles foreign affairs; it is called by John Locke the " federative ” power. He acknowledges besides these powers also the " prerogatives ” of the king; namely that in some matters the king can act at his own discretion for the public good without being restricted by the parliament. The ideas of Locke were not without influence upon Montesquieu who conceived in his book Esprit des lois (The Spirit of Laws), published in 1748, his famous theory of the separation of powers. The three powers, the legislative, the executive and the judicial power must be, according to him, separate from each other, i. e., they ought not be concentrated in one person or in one assembly; otherwise there is no liberty. As every one endowed with power is inclined to abuse it, every power must be limited by some other power. Liberty dis¬ appears where the legislative power is not separated from the judicial and the executive powers, because there the danger exists that the legislator will enact tyrannical laws in order to execute them tyran¬ nically (that means: laws would be created for the purpose of secur¬ ing particular administrative or judicial decisions, and, therefore, legal security would be lost). But if the judicial power were linked with the executive the judge would have the power of an oppressor (that means: the judgment which ought to be unbiassed would be warped by the partial views of the executive). Montesquieu conceived the legislative and the judicial power in the same way as we do; but he defined the executive somewhat differently; it comprised, in his opinion, the power over war and peace, of sending and receiving ambassadors and of keeping order at home. Montesquieu did not classify the state powers from a merely theoretical viewpoint, but in order to secure political freedom through a balance of these powers. Neither did he recommend that these powers be entirely severed from each other. He even asked that the chief of the executive power cooperate in the sphere of legislation through the right of sanctioning laws and of summoning and adjourning the legislative assembly. And to the legislative power he gave the right of controlling the executive’s carrying out the laws. He admitted also exceptions to the rule for¬ bidding the legislative assembly to exercise judicial power. His first aim was to secure a reciprocal limitation of the principal state activities, and, in the legislative assembly, a limitation of one house through the other. Whereas Montesquieu advocated the separation of the state author- 66 A TREATISE ON THE STATE ities only to a certain limit, the French Constitution of 1791 in carry¬ ing out this principle went further and especially rendered difficult a collaboration of the legislative assembly with the executive; each of these powers had, according to this constitution, full sway in its own sphere; but, therefore, each became isolated. The subsequent con¬ stitution of 1793 does not speak of a separation of powers, but of a limitation of public functions; however, the preponderance of the legislative power, apparently under the influence of Rousseau’s ideas, was so accentuated, that the executive power amounted to nothing more than the execution of the commands of the legislature. This constitution was not put into practice. The constitution of 1795 turned back to the principle of a strict separation of powers; but for just this reason serious conflicts arose between the legislative and the executive power. With the ascendancy of Napoleon I. in 1799 this constitution was abolished. Kant ( " Rechtslehre,” § 48) expressed the idea of a strict separation of the three aforementioned powers in a special form which attributed to each of them the char¬ acter of a " moral ” (we would say a " juristic ” ) person. The principle of a separation of the three powers has been realized nowhere to such a degree as in the United States of America. The reason therefore is to be found not only in Montesquieu’s influence but also in the tradition of America itself. North America (as far as it was colonized) was an English colony until 1776. The English emi¬ grants themselves who went there in the 16th and 17th centuries established constitutions for some of the colonies and these were con¬ firmed by the King; constitutions (charters) were given to other colonies either by the King himself or by the owner of the colony duly authorized by the King. The organization of each colony was fixed in its constitution; it comprised three principal organs: 1) the legislative assembly, 2) The governor, who was to be either elected or appointed by the English King or by the owner of the colony, and 3) the courts. However, the colonial legislature could not, as it could in fully independent states, conclusively fix the rules for the conduct of all the judicial and administrative organs; for there were, above the colonial laws, not only the colonial constitutions, issued or con¬ firmed by the English authorities, but also the English laws. The gov¬ ernor, therefore, could effectively veto laws overstepping the limits just mentioned; and, on the other hand, the English court could ignore such laws. Thus, there appeared an administrative and a judicial power which was independent of the colonial legislature and FORMS OF THE STATE 67 which could determine the validity of the colonial laws; so, there existed a real separation of powers. All this was possible, because the final judicial resort was an English tribunal, and because the gov¬ ernor, the chief of the colonial administration, was dependent upon the English government. The higher authority, however—and this is the important point—which was placed over the colonial authorities, was not in the colony, but, beyond the ocean—in England. Just for this reason it appeared that the legislative, administrative and judicial power were, within the colony itself, exercised as separate from and independent of each other. The Americans wanted to keep this counter-balance of powers even when they seceded from England. After the separation, the governor was, of course, no longer an English official; but he retained the veto power. The supreme courts ceased to be English; so they were now no longer concerned with the question of the conformity of American laws to English law; but they did question their conformity with the Ameri¬ can constitutions. However, even on the American continent, the sepa¬ ration of powers could not be carried out effectively at a time when these powers had ceased to be connected with each other through English laws and authorities. And so, although the open collaboration of the federal executive (president and secretaries of state) with the legis¬ lature (Congress) is not admitted, there has nevertheless evolved a sort of collaboration in standing committees of the Senate and the House of Representatives. Thus, there was established not merely a connection between the legislative and the executive power, but even a control of the former over the latter. Americans themselves (especi¬ ally Woodrow Wilson in his book Congressional Government ) admit that the principle of division or separation of powers, or, as it is also called, of " checks and balances ” is far from being carried out consistently in America. We shall see later on (p. 79) that in America even the courts could not be kept aloof from the influence of the legislature. The principle of the separation of powers has not been expounded theoretically with sufficient clearness; for the reason perhaps that, being contradictory to the unity of the state, it cannot be, in practice, fully actualized. The unity of the state categorically demands the existence of some one power, to which all the other powers are subor¬ dinate; but this power need not be exercised by one organ only; it can be exercised by several organs acting in harmony with one another. Only in a sphere below this supreme power can a division of powers 68 A TREATISE ON THE STATE take place; otherwise, the unity of the state, and so the state itself would be put in question. Within these limits, then, the principle of separation may imply: 1) division of work in the state organization; each does that for which he is best fitted (there are e. g., other quali¬ ties necessary for making laws than for executing them) ; 2) the organs of the chief state jurisdictions may be appointed, as far as possible, by organs of their own jurisdiction; 3) these organs to whom the protection of the most important human interests is committed, viz., the judges, ought to be independent in reality; this independence is also to be secured through the procedure of appointment. In spite of the fact that all powers are subordinate to the legislative (or to the con¬ stitution-making) power, it is practicable to commit to the judiciary, as the power endowed with the highest guarantees of independence, the control over the conformity of the executive to law (this control can be given to ordinary courts or to special administrative tribunals) ; and even the question of conformity of legislation to the constitution (especially when legislation is divided into a central and a provincial one) can be committed to a special court. These requisites embody the historical and political meaning of the famous device of separation of powers. If, however, we want to make a juridical division of the state organization we must do it accord¬ ing to the different levels of legal authority, as will be demonstrated in the chapters dealing with the state law and the state organs. 1. The Constitutional Monarchy This state form evolved directly from the absolute monarchy and is the first step towards the development of the modern state. The theory of the constitutional monarchy was closely connected with the doctrine of the separation of powers by which an attempt was made to keep a balance between the chief of the executive (the monarch), on the one hand, and the parliament elected by the people, on the other. These two organs were to exercise the supreme power conjointly; the mon¬ arch, his power heretofore unlimited, was now limited in exercising the supreme power (i. e., in making laws and altering the constitu¬ tion) by another organ designated in the constitution; for this reason such a state is spoken of as a constitutional monarchy, in contrast to the absolute monarchy. Nevertheless the monarch remained the chief center of the state authority. In the constitutional monarchy, the min¬ isters are more dependent upon the monarch than upon the parlia- FORMS OF THE STATE 69 ment. Their dependence appears clearly from the manner in which they are chosen. The monarch is not bound to appoint the ministers from the membership of parliament or with its consent; neither is it indispensable that the appointees enjoy the confidence of the majority in parliament; but they must have the confidence of the monarch. The parliament can, it is true, impeach the ministers for unconstitu¬ tional or illegal acts; but politically the ministers are in no way held responsible to parliament. For this reason the control of the parlia¬ ment over the administration has proved very ineffective; and so it happened that the monarch, in the constitutional monarchy, was able to retain, as far as the executive power was concerned, many of the rights of an absolute monarch; and he continued to exercise these rights unhampered by the responsibility of his ministers, e. g., the right to organize and command the army and the right to grant par¬ dons. For the rest, he is limited even in his capacity as chief of the executive by the collaboration of the ministers, who must countersign his acts. If there is any doubt about which powers belong to the par¬ liament and which to the monarch, the question is settled by the monarch. As to legislation, the monarch holds the position of an organ exactly equal to and concurrent with the parliament. Agree¬ ment between both organs is necessary in order to create laws; hence the regular legislation depends as much upon the monarch as upon the parliament. The monarch is at liberty to sanction or not to sanction a bill and, therefore, has the power of absolute veto; as it is, the great majority of laws are proposed by the government itself; they have the so-called " pre-sanction ” of the monarch. However, in some con¬ stitutional monarchies, as, for example, in Austria before the World War, there existed a kind of extraordinary legislating power, in addi¬ tion to the ordinary or regular legislation. In urgent cases and if parliament was not assembled, the monarch himself could issue laws provided they involved no change of the constitution and imposed no lasting financial obligations on the state. Such legislative decrees of the monarch, it is true, were issued under the responsibility of all the ministers; also they had to be submitted to the parliament at its next meeting and, if not approved by it, lost their force. But, by means of an extensive interpretation of the constitutional text in question, the monarch, who had the right to summon and to adjourn the parliament, and his ministers were even able to issue without parliamentary vote financial laws and to alter the budget. Some of the fundamental rights of citizens could also, when the state was threatened by some danger, be 70 A TREATISE ON THE STATE temporarily suspended by a similar procedure. It may be mentioned that there has been worked out by Professor Laband, as applying to the constitutional monarchy and especially to the former German Empire, a special theory on the budget whereby, as we shall see later on (pp. 158-9), the power of the parliament was pushed into the background. The constitutional monarchy has its name from the " constitution ” which was given to the people by the monarch; it is thus indicated that not any constitution, but only a certain kind of constitution, is characteristic of the so-called " constitutional ” monarchy. Its main features are concessions given willingly or unwillingly by the once absolute monarch to the people and to their representatives, the elected parliament, the preponderant power remaining, however, in the hands of the monarch. So it is easy to understand that this state form pre¬ vailed in countries with old, traditional dynasties. Examples are the German and the Austrian empires, both of which vanished in 1918. 2. The Parliamentary Monarchy and the Parliamentary Republic The parliamentary monarchy came into existence in many cases through revolution; i. e., when the people or the parliament repudiated the old dynasty and established a new one. For this reason the parliament, under such a state form, holds the preponderant power. An example of a parliamentary monarchy is England, where, in the time of the revolution of 1688, the dynasty of the Stuarts was deposed and the Orange dynasty established. Institutions characteristic of the parlia¬ mentary regime, which was later on imitated by still other nations, developed there during the 18th and 19th century. In England this process was rather slow; the old traditional forms were tenaciously maintained and the new ideas introduced in their guise. Attempts of the English kings in the 17th century to govern with¬ out the parliament, or in opposition to it, failed; also the attempts of the parliament (Cromwell), to rule without the King, failed. The struggles between these two powers, revolutions on one side, coups d’etat on the other, showed clearly that the liberty of the parliament and of the nation is jeopardized if the executive power is not answer- able for its acts, but also it showed that to fix this responsibility on the head of this power, i. e., the King, is to court dangers just as great. For this responsibility is necessarily linked with punishment or the deposition of the King, which is a political event of far-reaching effect FORMS OF THE STATE 71 and which may shake the foundations of the state like a revolution. The question therefore is: How can the responsibility of the executive power coexist with the irresponsibility of the head of this power ? The English solved this problem by fixing the responsibility on the minis¬ ters, which means this: The ministers are responsible before the par¬ liament as a court for illegal acts committed by the King and for illegal acts committed by themselves; and they are, further, responsible before the parliament as an organ controlling the administration for other acts, which, though not illegal, are prejudicial to the state and which have been performed either by the ministers themselves or by the King. An inevitable consequence of this fixing of responsibility is the shifting of political power from the King to the ministers. English constitutional practice, which has the force of unwritten customary law, has developed three principles which are fundamental with the parliamentary regime: 1) The irresponsibility of the monarch. No court can pass judg¬ ment upon the King; in this respect the principle of the absolute monarchy was maintained. The King can do no wrong from a legal point of view. This, however, being a privilege only for the person of the King, nobody can refer to a command of the King in order to justify his own illegal act. 2) The responsibility of the minister for any act, either illegal or prejudicial to the interests of the state, which he has committed or helped to commit, e. g., by countersigning an order of the King. In very early times (14th century) the criminal responsibility of high state functionnaires was realized through the so-called impeachment, that is by accusation which could be brought against them by the lower house of parliament before the higher one; the latter passed judgment. This procedure was used at first only when illegal acts were in question, but in the 17th century it began to be used in cases of charges involving serious political mistakes. The right to pardon ministers who have been condemned was withdrawn from the King in the year 1701 in order that their responsibility might not be circumvented. This responsibility of the ministers, as far as it concerns illegal acts, passed from English law into American and French law and then also into the constitution of other countries. In England, however, impeach¬ ment and criminal responsibility of the ministers have lost all meaning. The last who was impeached in this way was Lord Melville in 1804. The impeachment has now become obsolete in England, because a 5 72 A TREATISE ON THE STATE simple vote of the majority of the House of Commons can turn a minister out of the Cabinet; owing to the elaborate system of political responsibility, a special criminal responsibility before the parliament has proved to be superfluous. 3) Whatever the King does officially or politically must be done in cooperation with a minister (or a responsible member of the Cabinet). This principle was developed from the old custom according to which important acts of the King, in order to be valid, had to be in the form of a letter sealed with certain seals. High functionnaries kept the seals and sealed the King’s letters with them; thus they became responsible for the legality of the King’s acts. This custom evolved into coopera¬ tion or at least assistance of the ministers at every official or politically important act of the King, whether it was performed by letter or other¬ wise. Only thus could the responsibility of the ministers for the legality or political expediency of the King’s acts be justified from a moral point of view. This cooperation is expressed in the saying: The King cannot act alone. The aforementioned principles served as the basis upon which the parliamentary system was worked out. The possibility of a conflict between the King and the responsible Cabinet on one side and the parliament on the other is the most remote when the counselors of the King, who at the same time are the responsible administrators of the state power, enjoy the full confidence of the parliament, viz., of the parliamentary majority. This confidence is secured in a high degree when the ministers themselves are members, and in an even higher degree when they are leading members of the majority in parliament. But, in spite of all that, they remain responsible to the King as well; they must therefore also have his confidence, which is assured by the fact that he chooses and appoints them out of the parliamentary majority and with its approval. This is the kind of government that has been evolving in England since 1688, but only slowly and by degrees. It appeared to be more and more difficult to rule against the will of the parliament particularly because of its budgetary rights. But it was not before 1792 that the Cabinet, which had lost the confidence of the parliament, resigned. In the 19th century the political responsibility of the ministers con¬ solidated more and more; and with this the idea developed that responsibility is not due to parliament as such, but to parliament as representing the opinion of the people. It is therefore not necessary FORMS OF THE STATE 73 that a Cabinet retire immediately when it has lost the confidence of the majority in parliament, provided it believes that it is supported by public opinion which will be expressed by the opinion of the majority of the voters. But if the Cabinet does not retire in such a case it must propose to the King the dissolution of the parliament (of the lower chamber) ; the result of the ensuing elections decides whether this Cabinet shall continue to be in power or not. Such a test, through dissolving the parliament, was first made by Pitt in 1784; at the new elections he gained the majority. So the power to decide in the ques¬ tion of the Cabinet was shifted from the King to parliament and then to the voters. In England in the last century, the question whether a Cabinet, defeated in parliament, was to remain in power or not, became linked with the question whether and to what degree public opinion was repre¬ sented in parliament; and with the advance of democratic ideas public opinion proved to be stronger than a parliament which was elected on the basis of a very limited franchise. The franchise had to be extended in order to harmonize parliament and public opinion; this was done through the electoral reforms of 1832, 1867, 1884, 1918 and 1928. Thus public opinion, i. e., the opinion of the politically interested parts of the nation, was enabled to express itself through the elections. The result of the election ought to show a concurrence of opinion between the majority in parliament and the majority of the voters. But a difference between the opinion of the parliament and public opinion, i. e., the opinion of the majority of the voters, as defined above, can easily arise after the elections and during the period of one parliament. Political parties, as it may happen, change their programme, deputies shift from one party to another, voters change their opinion as expressed at the last election; some voters die or lose the right to vote and other people acquire this right, for instance through attaining to the required age. The political structure of the parliament and of the constituencies or of both may be, for all or any of these reasons, altered in such a manner that harmony between parliament and the voters is disturbed. The parliamentary system therefore demands that the period (term) of one parliament ought not to be too long and that parliament has to be newly elected at appropriate intervals so as to represent the actual voters; the government then must be formed according to the new political complexion of parliament. A further demand of the Cabinet system is that parliament may be dissolved even before the expiration of its legal term, if, in the opinion of the government or of the parliament itself, 74 A, TREATISE ON THE STATE its composition no longer corresponds to the political orientation of the voters. New elections prove to be necessary, especially if there arise questions of great importance which were not at issue at the last elections. Thus, the modern parliamentary system requires not only a concord between government and parliament, but also between parliament and public opinion which has to be expressed: 1) through a sufficiently extended franchise, 2) at rather short intervals, 3) when important problems arise. The head of the state can play an important role in this latter respect by taking the initiative for the dissolution of parlia¬ ment and for new elections. If the government does not see or does not want to see a discrepancy between the parliament and public opin¬ ion, then it would be in keeping with the very spirit of the parlia¬ mentary system for the head of the state to appoint a new Cabinet whose sole purpose would be to conduct the elections, and this strictly according to the law; after the elections, however, a Cabinet should be appointed which would correspond with the majority of the newly elected parliament. We can also, on this basis, answer the question whether the monarch in a parliamentary monarchy is obliged to sanc¬ tion the bills which have passed parliament. As a rule, he must sanc¬ tion them. Only in the case when he thinks that the majority of par¬ liament differs from the majority of the nation concerning the bill in question is he allowed to dissolve parliament in the aforementioned manner. But after that he must submit to the " will of the nation ” as expressed in the result of the elections and he must sanction the bill if the new parliament votes in favor of it; he must do so because he could not find a minister who would stand responsible for the refusal of the sanction before parliament. Another and immediate dissolu¬ tion of parliament could scarcely alter the situation, for the result of the elections, in all probability, would be the same. Successive disso¬ lutions at brief intervals would, moreover, be inconsistent with the parliamentary regime which requires that the work of parliament be not interrupted for too long. Such a situation could not last because parliament must make appropriations annually and must (as is the case in England) re-enact all those laws which are in force for only one year. In the parliamentary state, not only the conduct of state affairs but also the responsibility for them lies with the ministers. This conduct must have a certain direction and consistency in important questions. The head of the state, in order to secure the homogeneity of the Cabi- FORMS OF THE STATE 75 net, usually calls upon the leader of the majority, or upon another prominent member thereof, to choose the other ministers and thus to form the Cabinet. This person then is appointed prime minister or, as he is called in some countries, president of the council of ministers. The prime minister presides at this council (the Cabinet), in which questions of great importance are discussed and decided, represents it, guides it politically and settles differences between the ministers (see p. 243). Corresponding to the unity of the Cabinet is the principle of collective responsibility of all the members for the general policy of the government; but each minister is individually responsible in mat¬ ters pertaining to his department. As a consequence of the solidarity of the Cabinet all its members must resign if the prime minister resigns, provided he is doing so for important political reasons; as a rule, other officials who occupy politically important posts also resign in this case. Parliamentary responsibility, it may be here observed, does not imply that parliament has authority to give orders to the ministers; it means only that parliament has the right to examine and judge their conduct in the past. But the initiative for action belongs to the min¬ isters. Parliament in a parliamentary state cannot be restricted in its right to vote the budget, which right is its strongest weapon; for taxes cannot be collected and expenses cannot be paid out of state funds without a budget passed in parliament. The power of raising revenue and of meeting expenses is that ultimate means with which parliament can render powerless a Cabinet in which it has no confidence, and so force it to resign. In many parliamentary states parliament must be convoked according to terms fixed by law. The closing of parliament, though done by order of the head of the state, is sometimes dependent on certain conditions, e. g., that the budget has been voted; adjournment, however, in some countries is left to the discretion of the parliament. In France, in the first revolutionary period, the parliamentary regime could not be introduced owing to the predominant influence of the theory of the separation of powers and, later on, owing to the absolu- tistic government of Napoleon I. This regime was introduced after the fall of Napoleon by a constitution (Charte) given by Louis XVIII in 1814. After various revolutions and political changes in the 19th century, the parliamentary regime was established in France again by the republican constitutional laws of 1875, which are still in force. But this regime works differently in republican France than in monarchi- 76 A TREATISE ON THE STATE cal England. The President of the Republic is elected by the parlia¬ ment at a joint meeting of the Senate and the Chamber of Deputies; this joint assembly is called " Assemblee Nationale.” Owing to this election, the President of the French Republic is much more dependent upon parliament than is the King in a parliamentary monarchy. Con¬ cerning parliament he has the following rights: to convoke an extraor¬ dinary session (which he is obliged to convoke on request of the majority of the members of either chamber) ; to adjourn parliament, but for not more than a month and not oftener than twice during one session, and to close parliament, without infraction, however, of the rule that both chambers must be assembled five months at least every year; but parliament assembles of itself for the ordinary session; the President has also the power to dissolve the lower house, i. e., the Chamber of Deputies, but only with the consent of the Senate. Up to now this has happened only once. The President has the right to introduce bills in parliament and the right to veto bills voted by both chambers; but if either chamber votes the bill again by a simple majority, then the President must promulgate this bill as a law. The French Presidents never used this veto; perhaps because it would be ineffective without the dissolution of the Chamber of Deputies, for a simple majority is sufficient, as we know, to make the repeated vote of the parliament fit for promulgation as law. The President is politi¬ cally irresponsible; it is only for high treason that he can be impeached by the Chamber of Deputies before the Senate, which then acts as court. The political responsibility of the ministers is settled in Article 6 of the constitutional law of February 25, 1875, which states that the ministers are collectively responsible before the chambers (of par¬ liament) for the general policy of the government and that each minis¬ ter is responsible for his own individual acts. They are responsible for the President of the Republic who is politically irresponsible. Thus, the parliamentary regime is fixed. The President can appoint only such ministers as enjoy the confidence of the parliamentary majority. In spite of the text and the spirit of the constitution according to which the President, elected for a period of seven years, ought to be irre¬ sponsible, it has several times happened (the last time in 1924) that he was obliged to resign by desire of the parliament (the Chamber of Deputies) before the expiration of his seven years’ term. Thus even the position of the head of the state has proved to be dependent upon parliament. The French legislators in 1875 imitated, as to the text of the constitution, British parliamentary government. But it turned FORMS OF THE STATE 77 out that such a government developed in a different way in a republic and under a bicameral system, which has, as in France, two chambers which are both constituted in nearly the same manner. What has evolved out of a tradition of many centuries in England, where the irresponsibility of the monarch is maintained, does not work always in the same way if transplanted in other countries. The political irre¬ sponsibility of the President of the French Republic could not be main¬ tained in some cases; the parliamentary regime of the British mon¬ archy turned, in France, into a regime of the parliament. In many European countries the parliamentary regime has been intro¬ duced, though in various forms: e. g., in Belgium, Germany, Poland, Czechoslovakia, Roumania, Austria. 3. The Presidential Republic. As an example of this form of state, which bears some resemblance to the constitutional monarchy, let us refer to the United States of America. Up to 1776 these states were British colonies. In spite of their separation from England they preserved in their constitution many features of their earlier political life. For instance, they vested in the elected President of their republic approximately the same powers that the English King possessed at that time. The parliamentary regime in England, it must be remembered, was then not yet fully developed; and the English King had much more power than he has today. How¬ ever, in England political institutions gradually developed in the direc¬ tion of a complete parliamentary system, whereas government in the United States has remained, on the whole, almost the same as it was when established in the 18th century. This marked stability of insti¬ tutions as first constituted is due in part to the principle of the sepa¬ ration of powers, which, as we have already seen, found in America conditions peculiarly favorable for its application, and in part to the great difficulties provided in the constitution itself of amending that document. In England, on the other hand, there was no written con¬ stitution to hamper the free development of constitutional practice. But the great difference between a constitutional monarchy and a Presidential republic is that in the latter the head of the state is not an hereditary one but an elected one; and in the United States he is elected for a comparatively short term of four years. He is elected by the people and not by parliament, and therefore is independent of the legislature to a much greater degree than is the president of a parlia- 78 A TREATISE ON THE STATE mentary republic. His power to veto bills voted by the legislature is very great, in as far as such bills as are vetoed by the President must be passed again by both houses with a two-thirds majority in each in order to become a law. The President is commander-in-chief of the Army and the Navy; he makes appointments to all important posts in the federal government,—this, however, only with the advice and con¬ sent of the Senate. He has the power to ratify international treaties but no ratification is valid without the consent of the Senate. On the other hand, the legislature is also largely independent of the Presi¬ dent; the President has not the right of initiative in legislation and he cannot dissolve Congress. The members of both houses of Con¬ gress (of the Senate and of the House of Representatives) are not elected for the same period as is the President. The President has the right to deliver messages to Congress (though usually he does not appear personally) ; this affords him an opportunity to express his desires to the legislature. But neither he nor the chiefs of the adminis¬ trative departments participate in the debates of the chambers. The ministers (secretaries of state) do not form a Cabinet; they are respon¬ sible only to the President; they are in no way politically responsible to Congress. Impeachment, however, is provided for the President, the Vice-President (who is at the same time president of the Senate) and other high federal officials; the right of impeachment belongs to the House of Representatives; the Senate tries the impeached. The person convicted for high treason, bribery and other high crimes must be removed from his post. The great power of the President is sustained by the separation of powers, by the difficulty of changing the constitution, by the bicameral system (one house possibly being a counterbalance against the other) and by the high authority of the judiciary which prevents the legisla¬ ture from transgressing the limits of its activity as drawn in the con¬ stitution. On the other hand, the short presidential period and the federal character of the republic check the President and prevent him from becoming a dictator. Though presidential reelections are not forbidden by the constitution, no President has, up to now, been elected more than twice. As we have already mentioned (p. 67) a collaboration of the gov¬ ernment with the legislature in committees of the Senate and the House of Representatives has developed because of the impossibility of com¬ pletely carrying out the principle of separation of powers. The legisla¬ ture has, according to some, thereby gained an excess of power over FORMS OF THE STATE 79 the President, whereas still others say that the President has appro¬ priated to himself a dictatorial power contrary to the spirit of the con¬ stitution. Whatever the case may be, it is noticeable that the legisla¬ tive power appears to the executive to be too strong, and vice versa; this is a consequence of the theory of the separation of powers which does not allow the two powers to be in a sufficiently close legal con¬ nection. It is generally held that the judicial power, as the custodian of the constitution, is entirely independent even of the legislature. But, as Wilson writes, 2 the Congress can create new posts for judges in the supreme court and, further, the Senate must approve the appointment of the highest judges; thus the legislature can exert an influence upon the appointment of judges. Also it may change the laws according to which the court has jurisdiction and thus affect cases even while they are pending. 3 We are concerned in this chapter mainly with the " presidential ” feature of government; political institutions in the United States are dealt with in many other chapters of this book, e. g., in the chapters on " The referendum,” " Separation of powers,” "Confederation ” and " The federal state,” " Notion and history of the constitution,” " Funda¬ mental rights,” " Head of the state,” " Judicial organs.” In Brazil and Argentina the distribution of powers is similar to that in the United States. The President of the German Republic, though elected by the people and possessing certain important powers, is politi¬ cally restricted to a considerable degree through the parliamentary sys¬ tem; further, he can be removed from his post before the expiration of his seven-year term by a vote of the people (referendum). 4. The Directorial Republic The name of this type of republic comes from the " directorate ” created by the French constitution of 1795, which was a board of five persons elected by parliament and in which the executive power was Vested; this board (directoire executif) appointed and dismissed the ministers. The designation " Directorial Republic ” has been applied to modern Switzerland, where the highest executive power is vested in a board called the " Federal Council ” (Bundesrat, Conseil federal) which is composed of seven members elected by the Federal Assembly 2 Congressional Government, fifth edition, 1889, p. 38. 3 Ibid., p. 39- 80 A TREATISE ON THE STATE for a term of three years. They must be Swiss citizens and must be eligible to the " National Council ” (which is one of the chambers of the Federal Assembly representing the nation as a whole, whereas the other, "The Council of the States,” represents the cantons). They are not allowed to pursue any other profession or to hold any other public office, and above all they cannot at the same time be members of the Federal Court or of the Federal Assembly. The Federal Council is present at the meetings of the parliament, and, as a board, has the right of initiative; it can also convoke the chambers for an extraordi¬ nary session; but it has no vetoing power and cannot dissolve parlia¬ ment, to whom it is not responsible politically; the members of the Federal Council do not resign if their proposals are not accepted by the parliament or by the people; they are not leaders of political par¬ ties in parliament. Thus, there is no parliamentary system in Switzer¬ land; the members of the Federal Council hold office for a fixed term. The fact that the executive is thus, though elected by the legislature, independent of the latter during the tenure of its office corresponds to the idea of the separation of powers. The equality of the cantons in sharing in the highest executive authority is in some degree supported by the rule that more than one member of the same canton cannot be in the Federal Council. Each member of the Federal Council is entrusted with the direction of one section of the state administration. Out of the seven members of the Federal Council one is elected by the Federal Assembly to be chairman of the Federal Council for a period of one year; he has the title " Federal President.” Neither he nor the vice-president can be elected for two consecutive years. The Federal President represents the state interiorly and exteriorly. He, therefore, is to be considered the high¬ est state functionary in Switzerland; but owing to his short term and to the fact that the Federal Council always makes its decisions as a board, his position is much weaker than the position of the president of other republics. The highest executive and governmental authority is, at any rate, the Federal Council which, on some questions, acts also as an administrative court. But the governmental authority of this Council appears to be, on the other hand, limited to a considerable degree if we compare it with the Cabinet in other countries, because it is in many respects a mere executive organ of the Federal Assembly to which belongs, in addition, the supervision over all its actions. This system which exists in the cantonal government as well as in FORMS OF THE STATE 81 the federal is made possible largely by the peculiar conditions existing in Switzerland. Not only is the executive power divided between the federal and the cantonal government, which even takes care of the execution of many federal laws, but this power, as well as the legisla¬ tive one, is at last subordinate to the national will as expressed by the referendum. And finally, the sphere of action of the executive in Switzerland is more restricted than in other countries. The adminis¬ tration of foreign and of military affairs in Switzerland, which has the international guarantee of a neutral state, is comparatively simple; whereas it is exactly these affairs which elsewhere comprehend very extensive and highly concentrated powers. And finally, in Switzer¬ land, the executive power, which in many countries appoints the judges, is, in this respect, not so highly charged, for in many cantons the judges are elected either by the people or by the cantonal parliament; and the members of the Federal Court are elected by the Federal Assembly. 5) The Corporate State The characteristic feature of this form of the state is that in some of its important activities it functions as a body composed of associations of men of the same profession (” guilds,” " syndicates,” " trade unions”). In a corporate state groups of professional men are endowed with special political rights and function essentially as parts of the state; they are state organs. In the corporate state, the terri¬ torial divisions, or, more accurately, the communities of men, whose existence is merely a result of their living in the same section of the state territory, recede into the background and lose their importance as political entities, while on the other hand the professional associations spread over the whole state territory, come to the forefront of political importance. Thus, the corporate state bears some likeness to the feudal state (p. 56) with this significant difference, however, that the estates ” of the latter were founded on a hereditary basis and that the great mass of the population was deprived of any political organi¬ sation, whereas the corporate state of the modern type aims to organize as many of its citizens as possible into corporations. Although in many states professional associations have almost always enjoyed a certain amount of autonomy and although they were even endowed with political rights in some states, it was not until just after the World War that several of the new constitutions provided for the creation of a kind of parliamentary body entirely on the basis 82 A TREATISE ON THE STATE of the professional association (e. g., in Germany, see p. 198). But there has been up to now only one modern example of organizing the whole nation in " corporations ’’ and of giving these corporations the character of state organs, and that is Fascist Italy. We shall therefore try to give a short sketch of its corporative organization. By the law of 1926 three kinds of professional groups or, as they are called, "syndical associations” were constituted: workers, employ¬ ers and free professions (intellectual workers, e. g., artists, etc.). They are organized in 13 national confederations: six of employers and six of employees (each comprising the following activities: agriculture, industry, commerce, maritime and air transport, transport by land and interior navigation, and banking) and a national confederation of free professions. If a syndical association is recognized by the state it rep¬ resents all the persons engaged in the occupation it stands for, includ¬ ing even those who did not register in the association. Every person thus represented has to pay an annual contribution fixed by the asso¬ ciation; and, likewise, the collective labor contracts entered into by the association are binding for all the persons represented by it. And thus, later on, the " Charter of Labor,” which is not a law but rather a programme and a solemn declaration, and which was published in April, 1927, stated in its Art. Ill that, though the forming of profes¬ sional organizations is not restricted, only that organization that is legally recognized and subject to the control of the state has the right of legally representing the entire body of employers or employed for which it has been constituted; of safeguarding its interests against the state or other professional associations; of entering into collective labor contracts for all belonging to the body, of levying contributions on them. Issues arising from the application of the collective contracts or from the demands of new labor conditions are settled by special courts com¬ posed of judges and industrial experts. Strikes and lock-outs are pro¬ hibited under penalties. A scheme has been further provided to combine the associations of employers and employees of the same occupation in a higher organiza¬ tion, in which all concerned in that occupation have to cooperate, under the supervision of the state, for the purpose of improving and increas¬ ing the production of the nation. These higher organizations are called corporations. Their scope is not to represent the interests of a particular class; their province is to conciliate opposing economic inter- FORMS OF THE STATE 83 ests, to establish general rules concerning conditions of labor, to encour¬ age the initiative for improving production; briefly, its purpose is to coordinate and organize production. Representing, thus, the general or national interest they are not endowed, as the syndical professional associations are, with a " juridical personality,” but are considered to be organs of the state. A central organ of all the corporations, the National Council of corporations, is provided for; and, in addition, a Ministry of Corporations has been created and is the highest organ dealing with questions involving corporations. The " syndical associations ” also have, further, to perform an impor¬ tant role in electoral proceedings. According to a law of 1928, each national confederation of the legally recognized syndical associations has to propose a certain number of candidates for the Chamber of Deputies; the same right may be bestowed upon associations of national importance which engage in cultural, educational and kindred pursuits. The number of candidates thus proposed equals twice the number of deputies to be elected. From the list of these candidates the Fascist Grand Council chooses nominees at its own discretion and draws up the final list of candidates, in which, however, it is at liberty to insert, in addition, the names of persons of fame in science, literature, arts, etc. This final list, comprising 400 names, is published and, after a fixed time, submitted to the broad mass of the voters with the ques¬ tion: " Do you approve the list of deputies designated by the National Grand Council of Fascism?” and the voters answer either "Yes” or "No.” The whole state forms only one constituency, comprising its entire territory. If a half, at least, of the votes is favorable to the list, then all the 400 persons on it are proclaimed deputies. If, however, a half plus one of the votes are " noes,” the list is not approved and new elections have to be held; and in this election only those asso¬ ciations which have at least 5,000 members registered as voters may present a list of candidates, which list cannot contain more than three- quarters of the deputies to be elected. All the candidates on that list which gets the majority of votes are elected. The seats reserved for the minority are distributed amongst the other lists in proportion to the number of votes obtained by them. Thus, the corporate state, in some respects, resembles a composed state (conf., pp. 84 et seq.) ; it is not made up, however, of territorial federat¬ ing units but of professional groups of citizens extending throughout the whole territory and enjoying a certain autonomy, but at the same 84 A TREATISE ON THE STATE time acting as state organs. However, the designation " composed state ” is now generally used only for a state whose composing parts are, as will be explained in the next chapter, territorial units, or bet¬ ter, groups of citizens, each group consisting of the population or the citizenry of one territorial unit. b) The idea of the composed ( federated) state 1) The Confederation A state which is not directly subordinate to international law is not a real state, as the discussion of the Protectorate shows (see p. 27). International treaties by which the contracting parties do not give up their capacity of performing acts which are subject directly to the authority of international law, do not affect their characters as states, the treaties themselves being a part of international law. Even in the case when special organizations and organs (bureaus, commissions, tribunals) are created by such treaties, the direct subjection of the contracting parties to international law is not thereby removed, pro¬ vided that these organizations have an international character; and they have such a character when their existence depends solely upon international treaties and not upon the law of a state. Examples are: The International Postal Union with its bureau in Bern, The Interna¬ tional Office for measures and weights in Paris, and also the League of Nations, established in 1919 by an international treaty, with its various organizations, the International Bureau of Labour, the Court of International Justice, etc. The Confederation is said to be an international organization and is generally defined as a lasting union of states with permanent organs and with the purpose of fostering the common interests of its members, especially in the sphere of foreign policy. A state can be a member of more than one international organization, if these organizations have fixed and clearly limited purposes; but it cannot be a member of more than one confederation for the reason that the aim of a confederation is to protect, to the greatest possible extent, the interests of its members in relations with foreign states. It is, however, a historical fact (and at the same time characteristic of the weakness of this kind of asso¬ ciation) that some states were members of a confederation in so far as only a part of their territory was involved: Only the Austrian, and not the Hungarian, part of the Austrian Empire, and only the duchies of Holstein and Lauenburg, and not entire Denmark, were members FORMS OF THE STATE 85 of the German Confederation. The main difference between an alliance and a confederation is that the latter acts permanently and not, as the former, only in the event of a war (which is the casus foederis) and that the confederation has therefore its permanent federal organs. The confederation differs, on the other hand, from other international organizations, which we have mentioned before, in its far-reaching purposes and, accordingly, in its more elaborate organization. Since this difference appears only in the multiplicity of purposes and in the complexity of the organization, and since every relation between states finally belongs to the sphere of foreign policy, it is not surprising that the notion of the confederation and the notions of other international organizations have not always been clearly and decisively differentiated from each other. Unions showing a rather great diversity were all classified as confederations; as such, in more recent times, were con¬ sidered: The united Dutch States from 1579 till 1795, the Confedera¬ tion of the United States of America from 1781 till 1789, the Swiss Confederation until 1789 and further from 1803 to 1814 and from 1814 to 1848, the American Confederacy from 1861 to 1865, the Union of the Australian Colonies from 1885 to 1895, the Rhein- bund ” from 1806 to 1815, and the German Confederation from 1815 to 1866. However, all opinions, no matter how diverse, concerning the nature of the confederation, agree in this: that its members are real states; many even say " sovereign ” states. That means, according to our opinion, that the members of a confederation are directly subject to international law. The confederation acts, it is true, in some respects as a unity: it has its ambassadors in foreign countries, concludes treat- ties, declares war and makes peace in its own name; but, at the same time, the members of a confederation are also in some respects consid¬ ered as units of international law. The decisive point, however, is that the membership itself is an international relation. If a state with¬ draws from a confederation and if it does so in accordance with the constituting treaty, then, as far as the state in question is concerned, the treaty is legally dissolved; if, however, the state withdraws other¬ wise than in accordance with the stipulations of the treaty, then this action is to be taken as a violation of the treaty, which has all the con¬ sequences of such a violation, but it is not a rebellion against a state authority. The conflict that arose in 1866 when Prussia withdrew from the German Confederation was not considered as a rebellion against a 86 A TREATISE ON THE STATE state authority but as a war in the terminology of international law; and there is great difference between the two; e. g., it makes a differ¬ ence whether the fighting troops are classified according to international law as soldiers or as rebels. Similarly, a real war may break out when a state which is a member of the confederation offers armed opposition to the " federal execution ”; i. e., coercive means employed by federal organs to carry out federal orders. The character of these orders is also proof that the members of a confederation are real states. For, the federal orders as such have no binding force in the individual states until they are, like international treaties, duly brought into the form of law or at least published as binding in each individual state. There is, further, no federal citizenship in a confederation, each state having merely a citizenship of its own. The confederation, being an international relation, can, like other such relations, be dissolved; if the constituting treaty does not provide otherwise, the dissolution may be effected in the same way as the foundation,—by a unanimous vote of all the confederated states. The organization of the confederation corresponds to its juridical character. The chief organ is the federal assembly, which is composed of delegates of the individual states; these delegates are appointed, empowered, instructed and recalled by their governments. As a rule, all the votes are equal and resolutions have to be made unanimously. It is true that in some confederations, e. g., in the German, voting by majority was allowed on certain questions and that larger states had more votes than smaller states, but the constituting treaty itself by which the confederation was established and in which the above-men¬ tioned method of voting was provided, ought, like any amendment of the treaty, to have been concluded unanimously. It is therefore said that a confederation as such cannot settle upon or change its jurisdic¬ tion, that it does not possess the " competence over the competences,” and this means that it has not the supreme or the constitution-making power; only all the confederated states together possess this authority and exercise it by unanimous vote. The chairmanship of the confedera¬ tion was held either by one of the confederated states permanently (as was the case with Austria in the German Confederation), or by each of them in its turn (as in the Dutch and Swiss Confederation) ; or there was a president elected by the Federal Assembly (as in the Con¬ federation of the United States of America) or even appointed by a foreign state (the president of the " Rheinbund ” was appointed by FORMS OF THE STATE 87 the French emperor). All the federal organs, e. g., military command¬ ers and ambassadors, are subordinate to the Federal Assembly. Although the jurisdiction of various confederations showed a great diversity, it always comprised foreign affairs and the chief command of the federal army, which was composed of contingents of the mem¬ ber states. The federal judiciary usually had authority only to decide conflicts between the individual states; its authority was, however, wider in the Confederation of the United States, which can be explained by the great significance of the judiciary in this country. The federal finances were maintained by contributions of the individual states, the amount of which was fixed by the Federal Assembly. In some cases, means of transportation and communication and trade were also con¬ sidered as common affairs or they were, at least, controlled by the con¬ federation; even a special federal administration in the matters of money, measures and weights, commerce and post was sometimes estab¬ lished. In consideration of the fact that the members of a confederation are real states whose membership depends upon themselves, whereas the jurisdiction of the confederation depends upon all the members taken together, some placed the confederation on a par with a society ruled by civil law (societas) . Jellinek drew a parallel between the con¬ federation and the old German " Gesamthandverhaltnis,” i. e., a society whose partners form a legal unit whenever they all act together (with joined hands) ; otherwise each partner is a legal unit by himself. The importance of such parallels must not be overvalued (which becomes clear even by the exposition of Jellinek himself), especially if we consider how various forms of associations of states have been quali¬ fied as confederations. The problem with which we are dealing in this and in the following chapter was one of the most interesting issues of the war between the southern and the northern states of the American Union from 1861 to 1865 (the civil war). Besides the question of slavery, the interpretation of the federal constitution was an important concern of the conflict. The southern states held the members of the Union to be true (sovereign) states. John Calhoun (1782-1850) had already defended this opinion in his treatise on the constitution and the gov¬ ernment of the United States. This constitution is, in his opinion, founded upon a treaty between the states and not upon a law; there¬ fore, the individual states have maintained their sovereignty. The cen- 6 88 A TREATISE ON THE STATE tral (federal) authority, it is true, has direct legislative, executive and judicial powers over the citizens of the individual states; but these powers have been transferred, delegated from the states to the federal authority which, therefore, is not higher than the individual states but coordinate with them. Each state has the right to judge whether the federal organs have kept within the limits of powers delegated to them and whether their decisions are in accordance with the con¬ stitution or not. If a state decides that the federal authority has done something unconstitutional it has the right to declare provision¬ ally that this act is invalid and to ask that all the states decide jointly whether it is or is not constitutional. This right, belonging to each state of the Union, is called the right of nullification. If the requested decision arrived at by a majority vote of the states, is against the state in question and if the latter still holds that the contested act was unconstitutional, then it has, being sovereign, the right to nullify, as far as the state in question is concerned, the federal treaty and to withdraw from the Union (right of secession). According to this explanation, the American Union would be a confederation rather than a federal state. But with the victory of the northern states it was decided that the individual states have not the right to interpret the constitution as a treaty, that they are subordinate to the Union, that they have not the right of nullification and secession, and that therefore the constitution has to be interpreted as being a constitution of a federal state. Confederations could not be maintained anywhere over a long period of time for confederation was an attempt to harmonize two opposing tendencies, i. e., it had, on the one hand, to establish, out of several states, a new unity which would give to all its members the advantages of a large unitary state, and, on the other, it had to main¬ tain the independence of each of the federal states in the question of its membership in the union. This immanent conflict also makes the understanding of the confederation, from a legal point of view, rather difficult. All the confederations of the past have, by this time, either been dissolved (German Confederation), or have changed into federal states (the United States of America, Switzerland, Australia) or even into unitary states (Holland). Nevertheless, there is a very recent association of states which might be classified as a confedera¬ tion: The League of Nations. But its covenant and its scope show important divergences: The League of Nations is an open associa- FORMS OF THE STATE 89 tion; any state can, under certain conditions, join it; it is precisely the scope of this League to unite all states of the world so that peace can be maintained between them. The historical confederations were far more limited in their scope. There is a special kind of confederation, a union of two or more states, the chief feature of which is their having a common supreme organ. Such unions have been actually effected only among monarchies, and then in one of two forms: as a "personal” or as a " real ” union. A merely " personal union ” is not intended by the parties involved and the identity of the monarch in the states con¬ cerned is not established by a legal act of these states together, and thus this union is not considered to be a juridical union. It comes into existence when, according to the unilateral rule regulating the succession to the throne in one state, the same person who becomes monarch of it, also becomes monarch in another state according to the latter’s unilateral law; the same situation can arise through the choice of a monarch who is at the same time the ruler of a foreign state. The identity of the monarch, not being obligatory, ceases when according to the laws (independent from each other) of the countries concerned different persons again become monarchs in each of them. It may be further observed that each of the countries, being united only by the per¬ son of an individual monarch, is free to change its law concerning the succession to the throne, and, generally, concerning the form of state. The " personal union ” means the identity of the person of the monarch in several states, but it does not mean that there is a common rule or a treaty between them, that they must have a common monarch. The personal union, for a time, linked England with Scotland, Great Britain with Hanover, the Austrian crown-provinces with each other, and Austria with Hungary. The destiny of the personal union was that it dissolved (Great Britain-Hanover) or that it turned into a unitary state (Great Britain) or into a " real ” union (Austria- Hungary) . We speak of a " real union ” when two or more states are obliged to have the monarch in common. This obligation is established by an agreement which is exposed in a formal treaty or which appears in other legal acts. Real union, in contradistinction to the personal one, is not an accidental union appearing merely in a person, but an intentional union hinging upon an institution to be held in common. The identity of the monarch is an essential institution in a real union, but it is not essential 90 A TREATISE ON THE STATE that he have identical powers in all the countries concerned. However, it can be agreed upon, that certain of his powers be the same in these countries. In spheres to which such an agreement does not extend, he exercises his monarchical powers according to the constitution of each state concerned only. The real union is a species of confedera¬ tion because the basis of the community in question is a treaty. Never¬ theless, it is a special kind of confederation, the common organ being not an assembly of delegates but one person, who is monarch in either state. Founded upon an agreement the real union lasts as long as the agreement lasts. In this respect the same is to be said as was said concerning the confederation. As is the case in the confederation, so also in the " real union ” there are no laws common to all the states thus united; neither is citizenship common. It may, however, be agreed upon to have certain other institutions, besides the monarch, in common. In Austria-Hungary common affairs were: The monarch, foreign representation, military affairs, and the expenses for the main¬ tenance of these matters; and also the administration of Bosnia and Herzegovina, these two countries being then under the common domi¬ nion (condominium or coimperium) of Austria and Hungary. Organs in common were the monarch, the minister for foreign affairs, the minister of war and the minister for common finances. Besides permanently common affairs there were others, which were from time to time, by an agreement, designated as common. Each state had its parliament and its government. The administration of the common affairs was controlled by " delegations,” i. e., committees elected by the Austrian and by the Hungarian parliament, which, however, as a rule did not sit together, and which had no legislative power. The common expenses were not paid out of the common revenues but by contribu¬ tions of both states, the amount of which had to be fixed from time to time by an agreement of both parliaments. A real union existed also between Sweden and Norway from 1815 to 1905. Real unions have the same drawbacks as confederations, the advantages of a unitary organization being hardly compatible with the almost complete inde¬ pendence of the states thus united. Such a union presents great diffi¬ culties particularly in parliamentary monarchies where the parliament possesses an overwhelming political power; in this case the supreme power in both countries is exercised not only by one person common to both countries but also by two separate parliaments. With the growth of the parliamentary regime in Austria and Hungary the union between FORMS OF THE STATE 91 them became weaker and weaker. With the break-up of the Austro- Hungarian Monarchy in 1918 the last example of a real union dis¬ appeared. 2) The Federal State If several states unite in such a manner that they renounce, at least as far as the existence of the union is concerned, their direct subordina¬ tion as individual states to international law, and if they organize the union so that the union itself becomes directly subject to international law, then the new organization has, according to our definition of the state, become a state; those organizations, however, which went to make up the union have lost their statehood in the sense of our defini¬ tion. All this can be effected by a treaty. To the assumption that one new state can be created out of several old ones by means of a treaty, it has been objected that the new state, in order to be a true state, must be independent of the states by and out of which it was created; but that this is inconsistent with the character of an international treaty, which is supposed to be the legal basis for the existence of the new state. An international treaty, it has been alleged, can be rescinded by the states which contracted it; and so the existence of the new state would depend upon the states of which it was formed and this is inconsistent with its character as a (sovereign) state. However, this opinion overlooks the fact that the essential feature of the treaty by which the new state was created is a renunciation of " statehood ” on the part of the contracting states (as far as the existence of the union is concerned), /. . g., through long and irrelevant speeches, through making numerous and inconsequential motions, through leaving the room where parliament is sitting, thus destroying the " quorum,” etc. The minority has the right, and even the duty, to ” oppose,” i. e., to com¬ bat the purposes of the majority, to criticize and to control it; hence the name " opposition.” But it is a question whether it is lawful for the minority to obstruct the business of parliament at all by resorting to the aforementioned more or less vexatious means. However, if such a course of action is not forbidden by law and by the parlia¬ mentary rule of proceedings there can be, from a legal point of view, no objection to it. Attempts to throttle obstruction are not without danger to the liberty and the exhaustiveness of parliamentary dis¬ cussion. The main work of parliament is not done, however, in the assembly itself, but in committees, which are elected or appointed by and from 15 232 A TREATISE ON THE STATE among the members of the assembly for certain purposes, e. g., for financial affairs, for commerce, for foreign affairs, etc. Some of these are standing committees, i. e., they are elected for the entire session, while others are chosen when an emergency arises. In certain parlia¬ ments there are also some committees which continue their work after the session is closed and even after parliament is dissolved; but, in this latter case, we cannot properly speak of a parliamentary committee; for just after a dissolution there is no parliament and, hence, no mem¬ bers who could be members of parliamentary committees; we could perhaps label such a committee as a commission of experts having rights and duties conferred upon it by law. Committees are created in various ways. For this purpose, the French parliament is divided by lot into divisions, each of which has an equal number of members; but the ordinary method there, as well as in other countries, is to have the political groups in parliament elect committees according to the pro¬ portional system, so that minorities also may have a chance of being represented. The English House of Commons has, in addition to its other committees, a " committee of the whole house ” which is com¬ posed of all the members of the house, but which exhibits this peculia¬ rity, namely that it is presided over not by the speaker, but by the chairman of this committee and that its procedure is less formal. In the United States of America also, the House of Representatives often sits as " the committee of the whole.” In recent times, there has been a tendency to transfer parliamentary work, in great part, to committees. This is explained by the fact that the membership of parliament is very large, and hence that this body is too unwieldy to engage, as an entity, in productive and detailed debate. The institution of committees, further, helps to preserve con¬ tinuity during the intervals between the regular parliamentary sittings; and so supplies a need which at one time and in certain countries was occasionally filled by absolutistic legislation. As an example we cite the Czechoslovak Constitution of 1920 which provides for a " standing committee ” made up of members of both houses and possessing, at a time when parliament is not assembled or even when it is dissolved, and if urgent cases arise, approximately the same legislative, admini¬ strative and controlling power as parliament; this, however, with certain exceptions of important matters, e. g., amendment of the consti¬ tution, and with the limitation that resolutions of this committee have only temporary validity, being subject to subsequent approval of both chambers of parliament. An adequate limitation of such committees THE STATE ORGANS 233 is necessary to keep them from becoming absolutistic, as happened at the time of the English Revolution in the 17th century and the French Revolution in the 18th century, when parliamentary committees acquired wide powers and assumed governmental authority, with the result that the state administration came to be under the sway of what was sometimes a tyrannical rule exercised by these committees. The influence parliamentary committees have gained in the United States of America has been mentioned in a previous chapter (see p. 76). To the business which parliament carries out alone and without the collaboration of other authorities, belongs in many countries the control over the qualifications of its own members, especially the determination whether the members have been lawfully elected (veri¬ fication or confirmation of membership). Regularly these questions are discussed by a parliamentary committee whose resolutions are sub¬ ject to approval by the house. Sometimes, this investigation requires the solution of difficult and intricate legal questions concerning e.g., interpretation of the constitution, of the electoral law, and of other laws. For this reason it has been insistently urged that this important and delicate business be intrusted to a high tribunal whose members are better fitted for dealing with such legal questions than the members of parliament. This proposal is supported by good reasons: for it has been questioned not only whether parliament is fitted to decide on the qualifications of its own members, but also whether it is sufficiently impartial to do so ( e. g., in the case in which, by a lawful decision, a majority might be turned into a minority!) And, indeed, in some states, the judiciary is in charge of this business, e. g., in England where the question of contested elections is decided upon by two judges of the high court (election judges). In present-day Germany, a special court composed of members of parliament and of admini¬ strative judges has jurisdiction over the validity of elections; in Czecho¬ slovakia, this is entrusted to a court whose members are the president of the highest administrative tribunal and 12 judges elected by parlia¬ ment. However, in the United States of America, as in many other countries, each house decides, by itself, upon the validity of the elections and the qualifications of its members. Under the parliamentary regime, it is the duty of members of the cabinet to make answer to questions and interpellations addressed to them by members of parliament; this is an application of the principle that the government is responsible to parliament. In parliamentary terminology a question means either the oral or written expression of 234 A TREATISE ON THE STATE the desire of a member to get information from the government in a certain matter or affair; the question must be brief and is not scheduled in the "order of the day”; the member of the cabinet is ordinarily obliged to give a written or, if this is required, an oral answer within a definite time and that at the beginning of the sitting and before the house passes to the order of the day; but he may, as e. g., in England, for reasons of public interest, decline to give an answer. A " question ” never entails either a general debate or a vote; only a short discussion between a member of the government and a deputy is allowed; the latter may reply briefly to the answer of the government. The term interpellation, as it is used in many parliaments and especially in the French chambers, means a challenge by one or by a number of members of parliament addressed to the entire cabinet or to one of its members to explain or to justify an action or an attitude of the govern¬ ment. The interpellation must be presented to the chair of the house in writing; notice of it is given to all the members of parliament. The government (/. e., one of its members) must then, within a certain definite time, give an answer to the interpellation. The discussion of the interpellation is scheduled on the ” order of the day ”; besides the member of the government and the interpellator any other member of the house is allowed to speak also, so that a general debate may ensue, which, usually, is closed with a vote “ to pass to the other items of the order of the day.” The motion presented for this purpose and the vote taken on it may be to pass to the order of the day either " pur et sim¬ ple ” or “ motive," i. e., with certain considerations; in these considera¬ tions approval or disapproval may be expressed to the government; customarily, the latter declares which of the motions, if passed, it will consider as implying a vote of confidence. Under the parliamentary regime, resignation of the cabinet is the usual consequence of a vote expressing want of confidence, and in this way political responsibility of the government is enforced. Another right which many parliaments have is the right to make, through their own committees, inquiries and investigations in special cases and thus to control the actions of the state administration. 5) Special Rights of Members of Parliament Parliament needs liberty in order to carry out its duties properly. This liberty is protected in various ways, e. g., through the prohibition against any use of armed force in the building in which parliament THE STATE ORGANS 235 sits, or of holding of public meetings in the vicinity of this building, etc. The members of parliament are very effectively safeguarded in their liberty of action as long as they are not liable at law for their parliamentary activities, which means that no one can prosecute them or hold them responsible for any such act. In regard to this we must first mention the principle that members of parliament are entirely free and not legally responsible for the way they vote in the house. And parliamentary work executed in any man¬ ner whatsoever, e. g., through speeches, presentation of motions, can¬ not if it is to be free, lay the members of parliament open to any legal action, either criminal or civil; they are subject only to disciplinary measures provided for in parliamentary regulations. This privilege of parliament grew up in England, largely as a result of the fact that, from the 14th to the 16th century, the kings persecuted certain mem¬ bers of parliament whom they did not like. And therefore, as we have already mentioned (p. 117), Art. 9 of the Bill of Rights of 1689 stated " that the freedome of speech, and debates or proceedings in Parlya- ment, ought not to be impeached or questioned in any court or place out of Parlyament.” In all modern states the principle is accepted that members of parliament (of the lower and of the upper house) ought not to be prosecuted for actions which they performed in the exercise of their parliamentary profession, not even for such actions as would otherwise be considered as delicts, e. g., high treason committed in a speech or by presentation of a motion; those actions are punish¬ able only according to the regulation of proceedings, and, thus, only by a decision of the president or by a resolution of the house. This irre¬ sponsibility of the members of parliament is permanent; they can never, not even after they have ceased to be members, be prosecuted for actions performed in exercising their functions as members. How¬ ever, in interpreting the provisions of the constitutions or of the laws concerned with this subject one must not overlook the fact that this privilege protects only actions entailed in the performance of parlia¬ mentary functions, and, thus only those actions which enter into the field of these functions, such as voting, speeches, interpellations, motions; therefore the French law of 1875, in dealing with this ques¬ tion, mentions only " opinions or votes sent forth. And the Constitu¬ tion of the United States, Art. 1, sect. 6, states that " for any speech or debate in either house they (/. e., senators and representatives) shall not be questioned in any other place.’ An action which exhibits not even the outward features of a parliamentary function cannot be 236 A TREATISE ON THE STATE exempted from the provisions of the general criminal law; e. g., a murder committed by a member of parliament in a sitting of the house could not be considered as a performance of parliamentary functions. And further, it must be observed, that only members of parliament are immune to punishment for the aforementioned actions; yet another person who is not a deputy, but whose action is connected with the latter’s deed, may be punished; e. g., a member of parliament who makes a speech in parliament containing a slander is not responsible before the criminal court; but another person who is not a member of parliament and who praises this declaration may be tried before the regular courts and punished. This privilege which protects the member of parliament against prosecution for actions performed in connection with his parliamentary duty is sometimes called professional immunity or irresponsibility. Besides that, he enjoys the so-called unprofessional immunity. The liberty of parliament requires that members of parliament be not prevented from coming to the house. Since the time of the French Revolution the principle has been carried out that without the approval of parliament no one of its members may be prosecuted or deprived of liberty, not even on suspicion of a criminal deed. The main reason therefore is to prevent other state authorities, especially administrative ones, from imprisoning, on fictitious pretexts, deputies who are dis¬ pleasing to the government or from intimidating them by threats of prosecution. It is not the aim of this principle to make the deputy irresponsible under and to exempt him from the provisions of criminal law; its real purpose is to protect him and parliament against unjusti¬ fied prosecution. And it is in harmony with this purpose that, as an exception to this principle, a member of parliament may be prosecuted and also arrested if he is caught committing the punishable action itself (in flagranti) ; for, in that case, it is considered that the real perpetration of the offense is, to a certain extent, proved or, at least, that prosecution is justifiable, But, even in this case, parliament must be notified and has the right either to allow or to disallow further prosecution of its member. According to the purpose of this privilege, parliament when asked to allow the prosecution of certain of its mem¬ bers should consider only whether or not the demand is a vexatious attempt to thwart the liberty of the member and, thus, to hamper the business of parliament; but it ought not to withold its consent when it deems the prosecution is justified; neither ought it to enter upon the determination of the member’s guilt; for, in doing so, parliament THE STATE ORGANS 237 would intrude upon a jurisdiction which belongs to the authority of the judiciary and not of the legislature. The courts, on the other hand, may proceed against a member of parliament for only such deeds as parliament allows prosecution for. However, this privilege is not the same in each country, particularly with respect to the length of its duration as well as with respect to the offences it concerns. In France the immunity in question lasts only for the time of the session and affects " criminal and correctional ” cases but not contraventions of "simple police”; in other countries, the privilege extends to the entire period of membership and applies to all punishable acts even those for which merely disciplinary punish¬ ment is provided. Civil suits, of course, in so far as they do not entail arrest, can be carried on against a member of parliament without per¬ mission of the house. In England immunity of the members of par¬ liament extends throughout the time of the session and to a period of 40 days before it and 40 days after it; now, this privilege exempts only from imprisonment in civil cases and, in criminal proceedings, from imprisonment for minor offences; but it does not affect other more serious delicts; in the latter case, parliament must be notified only of the imprisonment of its member. The sense of justice and the idea of equality of all before the law as well as a confidence in the courts prevail over admitting parliamentary privileges to apply in cases of grave crimes. And in the Constitution of the United States it is set forth (Art. I, sect. 6) that senators and representatives " shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.” But after the expiration of the period of immunity any legal pro¬ ceeding may be carried on against a member of parliament, and that also for deeds committed during this period and for which prosecu¬ tion has not been allowed by parliament, provided, of course, that prosecution is, then, not obviated through lapse of time set by the statute of limitations. This immunity does not mean that the member is irresponsible, but only that his responsibility cannot, for a certain period, be enforced without consent of parliament; hence this period of immunity, strictly speaking, ought not to be included in the period of the operation of the statute of limitations. Both kinds of immunity being established for the sake of the liberty of the working of parliament and not for the private interests of its members, the latter, as a rule, cannot renounce this privilege. 238 A TREATISE ON THE STATE In certain countries, members of parliament and parliament itself enjoy a special protection against offences, and particularly against offences committed in the public press. In England, both houses of parliament have the right to try anyone (be he member of parliament or not) who commits the offence of " contempt of court ” against parliament; any kind of disregard is considered as such an offence, e. g., if a person who is summoned before parliament as a witness refuses to appear, etc. This can be explained by the English view which holds parliament to be a court also. The members of parliament usually have a special right to a mone¬ tary compensation. The changes of the legal and political aspect of membership in parliament can be traced in the different ways in which this financial question has been regulated. During the earlier period of the feudal state when no representatives were elected, there was no need to give any compensation to the lords, who came to parlia¬ ment in their own name, representing only themselves. The same applied to the representatives of towns, ecclesiastical corporations, and rural communes, for, even though these representatives happened to be elected, they were not elected expressly and solely for the purpose of attending diets or parliaments; they were organs of these corpora¬ tions, such as mayors, abbots, etc.; attendance at the assemblies of the estates belonged to the sphere of their official duties or powers. However, in the feudal state of later times the number of persons who enjoyed feudal rights increased to such an extent that it was hardly possible for all of them to come to the diet; and even if they came all of them could not always remain until the end of the assembly, for its powers had gradually been enlarged and its sessions prolonged. Representation by elected deputies was now inevitable. But those deputies, being mandataries of their electors, were not only obliged to fulfill the mandates (instructions) of the latter, but were also, accordingly, compensated by them for the expenses incurred in carrying out the mandate. Traces of such monetary compensation which every estate gave to its mandataries (though the payments were not uniform), have been found in France as early as the fifteenth century and in the German countries as early as the seventeenth. Those per¬ sons, however, who came to the diets of the estates by their own right and in their own name (the higher nobility and clergy) paid their own expenses themselves. Sometimes even a person was considered to be a member of the higher estates or of the lower estates depending on THE STATE ORGANS 239 whether he paid his own expenses in coming to the assembly or whether others paid the costs. England, at the outset, abided by the same custom as other feudal countries; yet in very early times it became customary there for the entire population (and not only the electors) of a county or of a town in which deputies were elected, to pay them an expense compensation for attending parliament. In the chapter on " Representation ” (pp. 59-60) we tried to show how, in England, the development in the status of the deputy from a mandatary of his electors to a state organ can be traced by following the history of the compensation paid him. In England the compensation of members of parliament was regu¬ lated in a detailed and elaborate way; but after the fifteenth century these regulations gradually fell into desuetude. The amounts in some cases such as for the travelling expenses of those deputies who came to London from distant parts of the country were so high that some localities at times preferred not to send deputies to parliament at all. And when it became desirable to accept seats in parliament even with¬ out payment, the deputies themselves ceased to claim compensation. Thus, by the middle of the seventeenth century members of parliament were no longer compensated. In very recent times, however, salaries were again granted to them. The United States of America was among the first countries to grant compensation on a modern basis to the members of parliament (the particular states of the American Union, it is believed, generally paid members of parliament even when they were yet British colonies). Art. I, sect. 6, of the Constitution of the United States declares that " the senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States.” The same principle was accepted in France at the time of the Revolution, and afterwards in a great number of other countries, though it was not adopted until comparatively recent times ir» England (1911) and Italy (1912). The character of membership in modern parliaments, in contradis¬ tinction to feudal representation, requires equal compensation for all members, which must be paid out of government funds. Members of parliament are now compensated according to the calculation of the average of such expenses as they are supposed to incur in connection with their services in parliament; or else some of these expenses are eliminated by gratis services, such as free transportation on railways. 240 A TREATISE ON THE STATE They are given compensation primarily in the public interest; hence, according to regulations in certain countries, members of parliament are not permitted to waive their right to compensation; neither can it be transferred or distrained; in some countries it is exempt from the income tax. The advisability or necessity of compensation for members of parlia¬ ment has frequently been a subject of lengthy debate. The arguments brought against compensation are chiefly these: The establishment of salaries would breed a special class of professional politicians made up of men who have failed in other professions or who are seeking a seat in parliament primarily for the sake of the financial return. And it is to be feared that such deputies would try to prolong the sessions of parliament; this would tend to lower its level. Moreover, compen¬ sation of the deputies would make them unduly dependent, on the one hand, upon their electors, (for it is advanced that the deputies would do everything their electors wished in order to be reelected) and, on the other, upon the government (for the government could deprive the deputies of compensation either by the dissolution of parliament or by the closure of its sessions, in countries where such actions of the government are provided for and where they entail the loss of the compensation). The chief arguments which have been urged in favor of compen¬ sation are: If no salary is established, the deputies (especially those living at a distance from the place where parliament is held) do not attend the sittings regularly, with the result that a quorum is often lacking. If members are not compensated out of public state funds, it will be necessary for those who elect them to compensate them. Failure to give any compensation at all would mean that only wealthy persons could afford to be elected; and in the end this would amount to an eligibility requirement of owning property or paying taxes. Thus the free working of universal suffrage would be thwarted, for the very idea of universal suffrage implies that the voters shall be free and in no way restricted in their choice of candidates to one (the wealthy) class of people. This was perhaps the strongest argument of those who brought about compensation for members of parliament. But, of course, it does not apply to assemblies like the English House of Lords, which is made up of hereditary and appointed, and not elected, mem¬ bers. As an interesting fact it may be noted that the same arguments have been advanced in favor of compensation for the voters as for the THE STATE ORGANS 241 deputies. In fact, some French laws of the time of the great revolu¬ tion, granted such a compensation; this corresponded to the idea that voting is a public service and not an exercise of a personal (subjective) right. However, this compensation has almost entirely vanished, one trace of it being the compensation for traveling expenses allowed to one of the four groups of electors who elect the French Senate; but voting is compulsory for these electors (under a penalty). The compensation of members of parliament is paid in various ways: sometimes as a " per diem ” allowance, and sometimes in a lump sum for a larger period, e. g., a month or a year or for the time of the session. On consideration of its purpose which is to provide for the deputy while he is performing his parliamentary business it appears that the right to this compensation need not begin with the acquisition of the seat; it can begin later, e. g., with the opening of the session, and under certain conditions, e. g., that of registering in the house office. As a rule, this right ends with the expiration of membership. However, certain deputies to whom, as functionaries of the previous parliament, after it has ended, certain functions are entrusted, e. g., members of the chair, continue to draw payment. The members of the chair, as such, receive additional remuneration. In some countries the right to compensation can be ended for various reasons even while the holder is still a member of the parliament; that is, it expires when the session closes, or it is withheld for unauthorized absence from the sittings, or for a long leave of absence, or when a member is arrested for a crime not entailing the loss of the seat (France), or in consequence of the exclusion of the member from the sitting, or finally as a purely disciplinary punishment in itself. In certain countries, the coupling of this compensation with other payments to be made out of the public treasury, e. g., with the mem¬ ber’s emoluments he may be entitled to draw out of state funds, is limited. The amount set aside for the compensation of members of parlia¬ ment must figure in the state budget, since it is an expense to be met with state money. The question of this compensation which the deputy can claim from the state as a pecuniary right and for which he can bring civil action before the court, does not enter into the sphere of parliamentary auton¬ omy alone. It is desirable therefore that the principal features of regu¬ lations concerned with this-right, such as when it comes into existence, when it ends, whether it can be transferred, attached or distrained, etc., 242 A TREATISE ON THE STATE be contained in laws (statutes). In England, in 1911, compensation of the members of the House of Commons was adopted without detailed regulation, simply by a resolution of this house, which, it is true, was inserted in the appropriation act of that year. In spite of the fact that resolutions of the English parliament bear great weight, this procedure was severely criticized in parliament itself. Even at present, the compensation of the members of the House of Commons has its legal basis in an annual vote which is inserted in the appropriation act. III. THE MINISTERS (CHIEFS OF THE EXECUTIVE DEPARTMENTS) AND THE ORGANS UNDER THEIR AUTHORITY (STATE ADMINISTRATION) The Latin word " minister ” means servant or assistant, and in the time of absolute monarchies was employed to designate the persons who assisted the monarch in carrying out the affairs of the state. As counselors of the monarch and as the highest state officials they were directly subject to him. In recent times, and prior to the French Revolution, the state admin¬ istration was organized chiefly according to the " board ” system, i. e., the most important offices were headed by several persons who delib¬ erated and decided together as a " board.” In its place another prin¬ ciple was introduced about the end of the 18th century (particularly under Napoleon I) called the "bureaucratic” system, according to which every office is headed by one person only, who is responsible for the work of his office. There was also at first, the " provincial ” system, according to which the central offices were distinguished from each other by their territorial jurisdiction, each of them supervising and controlling the entire administration of a single territorial unit (province). This was replaced by the " departmental ” system which distributed the entire state administration among a number of branches or departments, each of which had jurisdiction in a particular sphere of state administration and was centralized in a supreme administrative office (commission, ministry, department) which had jurisdiction over the whole state territory in matters pertaining to this branch. A min¬ ister was placed at the head of each branch of the administration. At first, the administration was divided into the following branches: foreign affairs, finance, war, justice, and interior affairs; to the last- mentioned belonged the " police,” i. e., the function of preserving THE STATE ORGANS 243 order, and, in addition, everything else that was not assigned to other departments. However, as the amount of state business increased, certain administrative branches belonging to the department of the interior, became separated and were placed under special ministries; such branches were: education, transportation, trade, health, public welfare, public works, labor, etc. The minister is the supreme deciding and supervising authority in his department; and to him also primarily is entrusted the issuance of ordinances which are necessary to carry out the laws in the sphere of his jurisdiction. But when very important matters are at issue ( e. g., important ordinances) and whenever the unity of the administration is involved, the custom usually followed is for all the ministers to deliberate and decide at a joint meeting or council over which the prime minister presides. Besides, in some countries, a resolution of the cabinet is also necessary for certain designated matters; and in some monarchies the cabinet is in certain cases called upon to exert the powers of the monarch, e. g., if the latter is abroad or ill, though not so seriously that a regency must be established (see p. 185). The minister’s council (the cabinet) sometimes deliberates under the chair¬ manship of the head of the state; in monarchies such a council is called a " crown council ”; in France, when the head of the state pre¬ sides, they speak of a council of the ministers (conseil des ministres) ; otherwise, they speak of a council of the cabinet (conseil de cabinet). The number of the ministers is not fixed by the constitution; neither is there always a law by which a new ministry is created; for the necessity of a new ministry may arise suddenly; moreover, the task of forming a cabinet, especially in parliamentary states, is such a difficult one sometimes that it would not be advisable to restrict the number of ministries too vigorously by law. However, the necessary appropria¬ tion must be provided for all the cabinet posts in the annual budget; thus, parliament exerts at least an indirect influence upon the establish¬ ment of ministries and their organization. The organs subordinate to the minister are bound to carry out his orders, which sometimes are implied in general rules set up by him for the conduct of the administration. To govern means to establish such general principles as these, within the limits of the free and usually broad discretion which the laws allow. Thus we can call gov¬ ernment that part of the supreme administration which is carried out by the head of the state and the ministers and which involves the 2 44 A TREATISE ON THE STATE political, social and other ideas appearing in the direction of the entire state administration. In the period during which the absolute monarchy was transformed into a parliamentary one, the opinion asserted itself that the minister is responsible to parliament not only for actions which he himself per¬ formed, but also for actions of the " irresponsible ” monarch, which have no legal validity unless they are countersigned by a responsible minister. The minister is also subject to responsibility for omission of actions which should have been performed, but which were not performed by the head of the state or by the minister. For all these reasons the minister is not a mere official; he is not required to prove that he has the qualifications which are prescribed for an official; his position, salary and retiring pension are regulated in a special manner; he is, in parliamentary states a kind of liegeman both of the head of the state and of the parliament and a mediator between them. He is therefore a politically important person, even regardless of the fact that in parliamentary states the prime minister is usually the leader of the strongest party in parliament, and that the other ministers are also prominent party members. The question of the role played by the prime minister as head of the government has been treated in the chap¬ ter dealing with the parliamentary monarchy and republic (see p. 75). The better the parliamentary regime is established the greater is the responsibility of the minister to parliament; and at the same time his responsibility to the head of the state, who is narrowly limited in his choice of the ministers, recedes into the background. This is otherwise in non-parliamentary states, in those of the old type, such as the United States of America, as well as in those of very recent date, e. g,, Italy (see pp. 82 et seq.). According to the Italian law of 1925 the prime minister who is called the head of the govern¬ ment (capo del governo) is responsible only to the king. He presents the other ministers to the king for nomination and for recall; they are responsible to the king and to him. It is further stated in this law that no item may be placed on the order of the day of the sittings of parliament without consent of the prime minister. Three months after a bill has been rejected in one house of parliament, the prime minister may cause it to be put to another, and this time a secret, vote, without debate; he may also demand that a bill which has been rejected in one house be debated and voted upon in the other house. Attacks against his life, integrity and liberty and also insults committed against his person are punished with great severity. THE STATE ORGANS 245 Legislation, under the parliamentary system, is centered in the cab¬ inet (which as we know conducts the administration), and not in the head of the state or in parliament, for the overwhelming majority of bills are presented to parliament as proposals of the government, whose staff of experts is quite familiar with the technique of modern legislation and is, in general, better qualified than anyone else to deal with legislative problems. Ordinarily ministers are both officials and political personalities; only rarely is a minister appointed who has no administrative depart¬ ment and whose functions are merely political; such a one (called a " minister without portfolio ” ) is merely a member of the cabinet and a counselor of the head of the state; but he shares equally in the joint responsibility of all the ministers. The prime minister himself sometimes has an administrative department to conduct and sometimes not. The responsibility of the minister to parliament, especially to its lower house, is sanctioned by the necessity of his resignation if he loses the confidence of the parliamentary majority, and is called his political responsibility (see pp. 71-2-6). This responsibility, which extends to the entire activity of the minister and his subordinate organs, does not depend upon whether the action for which he lost the con¬ fidence of parliament was legal or not; accordingly, the sanction of his responsibility is merely resignation of his position and nothing else. There exists, besides the political, a criminal responsibility of the minister for violation of the constitution or of other laws committed either by him in his official capacity or by the irresponsible head of the state; in both cases the minister is responsible for the commission of forbidden acts as well as for the omission of obligatory acts. The minister is criminally responsible not only for those illegal acts of the head of the state which he has countersigned, but also for those which he has not countersigned. For, if he does not wish to assume respon¬ sibility for such acts, it is his duty to try to prevent them by tendering his resignation. Again, he can free himself from the responsibility for acts of the head of the state, about which he had no knowledge whatever, only through resignation; because by not resigning he shows that he is willing to assume responsibility for these acts also. All this is in consequence of the principle of the irresponsibility of the head of the state. The criminal responsibility of the ministers is not collective as is their political responsibility, each minister being liable for his personal guilt only and not for the guilt of his colleagues or 246 A TREATISE ON THE STATE for punishable acts committed by his subordinate organs. The crim¬ inal responsibility of the ministers today, in comparison with their political responsibility, has become less important. Nevertheless, its existence, if only a preventive means, is valuable even in parliamentary states. During the period before parliamentary government came into operation its importance was much greater, especially in England, where, in centuries past, ministers were tried and punished not only for breaches of the law, but also for acts, which though legal, were considered to be prejudicial to the state. To this latter end, in certain cases special laws having retroactive force were passed; by means of such "bills of attainder” (see pp. 152-3) the minister was convicted for an action which was not punishable according to the laws in force at the time the action was performed. In the United States of America, according to Article I, Section 3 and Article II, Section 4 of the Constitution, the President, Vice- President and all civil officers of the United States if impeached for treason, bribery, or other high crimes and misdemeanors (see p. 78) must stand trial before the Senate sitting as a court. But the punish¬ ment, if in such a case the impeached is convicted, is merely removal from office and disqualification " to hold and enjoy any office of honor, trust or profit under the United States” i.e., federal offices; but after the proceedings of the Senate " the party convicted shall never¬ theless be liable and subject to indictment, trial, judgment and pun¬ ishment, according to law ” i. e., before the ordinary courts. In France, the lower house of parliament may impeach the ministers for crimes committed in the exercise of their office; in such cases the Senate is the court. It is, however, disputed whether the ministers can be tried only for crimes punishable by the existing laws or, gen¬ erally, for actions prejudicial to the state; in favor of the first opinion the principle is advanced that any punishment must be previously determined by a law (nulla poena sine lege), and in favor of the second that the Senate is a kind of political court and that the juris¬ diction of the ordinary courts obtains in cases of ordinary crimes com¬ mitted by ministers. It appears, however, that the opinion affirming the criminal liability of the ministers for acts which are not illegal but only politically prejudicial is a survival of the time when real political responsibility did not exist. More recent constitutions estab¬ lished criminal responsibility of the ministers only for breaches of the constitution and of the laws committed in the exercise of their office. The right to impeach is vested in parliament and, in certain mon- THE STATE ORGANS 247 archies, in the monarch. The upper house, of course, cannot impeach if it is the court for trial of impeachment. Either house can impeach in case the impeachment is to be tried by the ordinary supreme court or by a special court, which as a rule is made up of members of ordinary and administrative courts or of persons chosen by parliament and the head of the state. Sometimes it is the law that the minister, if convicted, cannot be pardoned without the consent of parliament. The civil responsibility of the minister means that he is obliged to make restitution for damages caused by an illegal action of his. The problem of this responsibility belongs to the wider question of the civil responsibility of officials for the consequences of their official acts. Whereas the English law maintains that the reparation for dam¬ age caused by an official may be claimed from him before the ordinary courts just as any other damage which has been caused by an unlawful act can be claimed from the author of the damage, the French law takes a different view. Influenced evidently by the theory of the separation of powers it does not recognize the jurisdiction of the ordi¬ nary courts in all cases in which acts of the administration are involved. Since 1872 (or 1873), in France, the administrative authority has been able to protest against the jurisdiction of the civil court in case an administrative official (also a minister) is sued before this court. The " tribunal of conflicts ” then decides whether the case enters into the jurisdiction of the civil court or not; the decision will be in favor of this jurisdiction, when, in the opinion of the tribunal, the illegality by which the damage was caused must be considered as a personal fault (faute personelle) of the official. In other cases, however, it is held that the official is not liable and that the administrative and not the civil court has proper jurisdiction, the illegality being attributed to the state (faute de service). This discrimination is not always clear. But, in the main, the following appears to be the French view: The more closely the unlawful action which caused the damage is connected with the service and can be explained by the existence and working of the state institution concerned, the more the French are inclined to hold the treasury responsible for restitution for the damage; and the administrative courts alone have jurisdiction in such cases. If, how¬ ever, the damage was caused by an illegal action which, though com¬ mitted by an official exercising his official authority, is not in essential connection with the service but can be separated from it, the official in so acting having pursued another end than the state had in view 16 248 A TREATISE ON THE STATE in establishing this service—then it is held that the damage was caused by personal fault of the official who is civilly responsible for it before the ordinary civil courts. In certain other states a civil action against the minister is allowed only in connection with criminal action and has to be brought either before the court which judges his criminal responsibility or before the ordinary civil court. Also it might be noted that, according to one method, the action for damages caused by an illegal act of a minister or of another functionary in performing his official business, is allowed against the state only, which, however, may in turn recover the damage from the minister or functionary; according to another method, this action may be brought first against the official and then, only in case he lacks sufficient means, against the state; finally it may be that the official and the state are jointly responsible, i. e., that the plaintiff may sue either the official, or the state or both for damages. The minister, finally, is civilly responsible to the state in case he has exceeded any amount set in the appropriation act or if he has spent it for other purposes than were determined in this act; of course, an action against him is possible only, if his conduct has not sub¬ sequently been approved either by the law on " the balance of accounts ” or by a special law. In certain countries undersecretaries of state are frequently appointed, directly under the ministers (in England some of the ministers are called secretaries of state, and in the United States for the most part simply " secretaries” for a special department). The legal position of the undersecretaries is not quite clear everywhere ( e. g., in France) and is not the same in all states. But, in the main, this appears to be true — that the undersecretaries of state differ, on the one hand, from the ministers in not being subject to the special ministerial responsibility and, consequently, in not countersigning the acts of the head of the state, though they share the political destiny of the cabinet. On the other hand, they differ from the assistants of ministers chiefly in that they are able to act as a minister’s deputy in parliament; this is especially the case in England, where the minister is represented in that house of which he is not a member by an undersecretary of state who is a member of it. In England " parliamentary ” undersecre¬ taries are political personalities and thus stand and fall with the cab¬ inet; "permanent” undersecretaries are officials and therefore inde¬ pendent of change of political power. THE STATE ORGANS 249 Subordinate to the ministers is the whole body of state officials, which again is divided into different ranks. State officials are persons who have voluntarily engaged themselves to serve the state in some par¬ ticular and more or less permanent way. Whereas the duties of citizens are established by law and are not conditioned by any special declara¬ tion or action on the part of the citizens, by which they submit them¬ selves to these duties—the duties of an official become incumbent upon that particular citizen only who voluntarily submits himself to special duties through entering into the state’s service. These duties and, in general, all the rules and terms of service are established in a general way and not for each official separately. Thus, the latter can not negotiate with the state administration about these terms, but must accept them as they are—or not enter the service. In this respect the state does not differ from other large organizations ( e. g., industrial concerns) which also have their service regulations applicable in a general way to all the employees. The coming into effect of the terms of service is conditioned by a bilateral legal act, i. e., an agreement, between that person who wishes to enter the service and the representative of the state administration. The terms of this agreement (qualification, salary, retiring pension, other rights and duties), it is true, are determined in advance by the law for the official as well as for the administration—but the person who desires to enter the service, on the one hand, and the representa¬ tive of the state administration on the other, are both at liberty to conclude this agreement whose terms are already fixed in advance. It is, therefore, in our opinion, quite proper to consider this agreement as a contract (at least in the broader sense of this word), though it is true that the agreement is usually made by means of an application for a position in the service on the one side, and of appointment on the other. The terms of this contract are certainly exceptional in so far as the incoming official submits to all the regulations of the service, not only to those which are in force at the moment of his entering the service, but also to future regulations, which may alter his position in a considerable way. However, in both theory and practice, a distinction is made between " pragmatic ” officials, /. e., those whose rights and duties are deter¬ mined in detail by a law (which itself is sometimes called " prag¬ matic ” ) and " contractual ” officials or employees; the terms of the contract concerning the latter group are not so exhaustively determined by law as are the terms for the first group, so that they may be stipu- 250 A TREATISE ON THE STATE lated, at least to a certain degree, by the persons in question and by the state administration. Thus, the characteristics of a " contract ” in this case are more evident than in the former case. Often the position of " contractual ” officials is not permanent, and usually is limited to a certain time; furthermore, the amount of their salary may be a matter of agreement, and the regular qualifications, e. g., the requirement of citizenship, may be dispensed with. Yet there are in the field between these two categories many intermediate forms of employment having in part both " pragmatic ” and " contractual ” features. The point of entrance into state service is, as we have stated, a bilateral legal act; but the appointment of a person to a certain post is very often a unilateral act of the state administration. It is also possible for the official to have no definite post at all, as is the case in some countries with officials who are, under certain circumstances and for a limited time, assigned to the " disposability ” of the gov¬ ernment. A condition required almost everywhere for entrance into state serv¬ ice is citizenship. An important right which is almost always con¬ nected with the position of an official is that to his salary which should be such as to permit him to live as befits his station in life, for, ordinarily, his service is his sole or, at least, his chief occupation. In many countries, after the termination of his service, the official (pro¬ vided that he has served for at least a certain time) is entitled to draw a retiring pension, part of which may revert after his death to his family (his wife and minor children). Because of his special duties, the official is subject to the authority of his superiors, and that according to special disciplinary regulations which are sanctioned by disciplinary punishments. But the authority of superiors over their subordinates is not the same in all branches of the service. Judges, as will be explained later, in exercising their judicial functions, are under no other authority whatever than the law. But administrative officials, as a rule, must obey the orders of superiors who hold proper authority over them; (yet, certain excep¬ tions to this principle must be admitted, at least in so far as orders are concerned which involve the performance of acts forbidden by criminal law) ; the superiors who give the orders are themselves respon¬ sible for the actions of subordinates performed according to their orders. The difference between punishments established in general criminal THE STATE ORGANS 251 law and disciplinary punishments is, in the main, that the latter con¬ cern only those rights and duties which are implied in the official’s special status; hence the severest disciplinary punishment is the with¬ drawal of this status and the annulment of all the rights which attached to it, i. e., dismissal from the service. In modern states the rights of the official are protected by independent courts; all disciplinary proceedings brought against him are similarly under judicial control. Notwithstanding these proceedings the officials are criminally respon¬ sible for actions which they have committed while performing their service and which are punishable according to the general criminal law. Limitations concerning this, which obtained in certain countries in past times, have now, by and large, been abandoned. On the other hand, persons, who commit punishable acts ( e. g., offences, insults) against officials in service, are liable to special punishment. The official may terminate his relations with the state administra¬ tion by withdrawal from the service, i. e., by resignation which, how¬ ever, in order to become effective, must first be accepted by the admin¬ istration. But the latter, for its part, is allowed to terminate the serv¬ ice of the official only in certain cases, which are determined by law. Guarantees for the security of his position and for fair disciplinary procedure as well as a salary befitting the official’s station in life— are amongst the main features of the regulations of the service which are expected to be found in a modern state. IV. SELF-GOVERNING BODIES AND THEIR ORGANS As was stated in the chapter on the unity of the state there are organizations within the state whose powers are more or less inde¬ pendent, i. e., made effective otherwise than through agents or orders or instruction of the supreme state administration and without any reservation with respect to a final decision of this administration, e., that administration which is headed by ministers whose jurisdiction extends over the entire state territory. In this category belong various associations; they are based upon the common interests of men of the same profession, or the same faith, or the same social, economic or artistic aspirations (professional associations) ; here too belong those associations of men which are based on the single common interest of their dwelling together on a certain territory (territorial associa¬ tions) ; of these one of the most important is the municipality. The legal situation of these associations varies widely and depends much 252 A TREATISE ON THE STATE upon the form of government and the historical past of the country concerned (see p. 138 on the liberty of association). In the time of the French Revolution it was emphasized that as the individual has his natural rights, so has the municipality. The French law of 1789 recognized a special " municipal power ” (pouvoir mu¬ nicipal). This is the municipality’s "natural” or "proper” jurisdic¬ tion, which comprises the free administration of its own property and the election of its own organs and its own police. The other powers exerted by the municipality are supposed to belong properly to the state, the latter having merely delegated them to the municipality (the delegated jurisdiction). Later legislation, however, especially under Napoleon, restricted the local self-government of the munici¬ palities considerably; but towards the middle of the 19th century the idea of the natural rights of the municipality was revived. The Bel¬ gian Constitution of 1831, Article 31, speaks of " exclusively munici¬ pal and provincial interests and the principles concerned are enumerated in Article 108. The liberal constitutions of 1848-49 of Germany and Austria also spoke of the " fundamental ” rights of the municipality. Today the idea of natural municipal rights which cannot be altered by law or even by the constitution, has vanished; municipalities have only such powers as are granted to them by laws, and these laws themselves can be altered or even abolished. Yet, in the text of cer¬ tain laws there has been maintained the conception of a " proper ” or independent jurisdiction of the municipality as comprehending all matters which according to the very purpose and idea of the munici¬ pality belong to it. The "purpose” of the municipality is expressed by the view that the municipal community is better fitted to carry out certain business than any other organization, especially the state organi¬ zation. According to the text of certain laws this business comprises everything that directly concerns the interests of the municipality and which the latter can carry out within its own limits and by its own means. As is the case with almost every association, these rights or powers have to do, in the main, with the administration of the common property, whether it be gainful ( e. g., investments) or not gainful (e. g., public roads, bridges, parks, etc.). This jurisdiction has been extended to other local needs of the members and residents of the municipality, e. g., water-supply, fire-protection, relief of the poor, protection of personal safety, etc. It appeears from what has just been said that within its territory THE STATE ORGANS 253 the municipality is engaged partly in the same public concerns as is the state organization itself ( e . g., in caring for the safety of persons and property) though not over such a wide territory. Thus, the " proper ” jurisdiction of the municipality is public administration, as is also the state administration itself; both of them draw all their powers from the laws of the state. The difference, however, between them is, that the latter is managed by organs which are subordinate to the central state government, whereas the former is carried out by organs which are independent of it. This distinction is the characteristic legal mark not only of munici¬ palities, but also of many other bodies or units which enjoy " self- government ” (or, as in the case of territorial units, " local govern¬ ment ” or "home rule”), or "autonomy” or " self-administration.” All these terms, which are often employed interchangeably, have a common meaning, namely that certain business is carried out by the members of that organization which is directly interested in this busi¬ ness, and not by the central government or the administration under its authority; and that, accordingly, the question of what persons shall be the administrators (administrative officials) is settled within the self- governing body. (In certain countries, however, the approval of some elected autonomous organs, e. g., of the mayors of large cities, is reserved to the central government or to the head of the state). Yet, self-government may go beyond this in a number of ways. First, the elected organs may be under no disciplinary authority whatever of the central government; this may apply to certain bodies as a whole, e. g., the town-council, as well as to persons individually, e. g., the mayor. These self-governing organs usually head a body of officials responsible to them and for whom a set of regulations, similar to regulations applicable to state officials, are in force. Second, admin¬ istrative acts of the organs of a self-governing body may be independ¬ ent of the central government so that no minister can give instruc¬ tions as to how these acts are to be performed; he may neither change nor annul them, provided these acts do not transgress the limits drawn by law. He has power to annul them only on the ground of illegal¬ ity; he cannot annul them on grounds of inexpediency. This has been compressed into the statement that the central government has only a " formal ” supervision over self-governing bodies. The latter may defend their powers, namely the independent exercise of them up to the aforementioned limits, before the courts (in certain countries, 254 A TREATISE ON THE STATE the administrative courts), if these powers have been encroached upon by the central government, or an organ under its authority. Usually, organizations which enjoy self-government not only have the right to perform administrative and even judicial acts (as e. g., the municipal courts), which have the same legal force as acts per¬ formed by the state authorities, but they have also the right to issue ordinances, which are obligatory for their members; such ordinances, if issued by self-governing territorial organizations, are very often obligatory, not only for their members, but also for all persons dwell¬ ing on the territory under the jurisdiction of this organization, e. g., the municipality. In such cases self-government approaches the notion of territorial autonomy. But if, furthermore, even the state courts are bound to observe resolutions passed by the board of a territorial self-governing body, so that these resolutions assume the character of provincial laws; if a special court is established to decide, whether, in cases of conflict, these laws are in harmony with the general state laws; if, moreover, the self-governing organization is endowed with an extensive jurisdiction, detached from the central administra¬ tion; if it is itself divided into various higher and lower authorities ( e. g., township, county, province) ; and if, finally, even the judicial organs for the territory in question are either elected by the people or appointed by organs of this self-governing territorial organization—- then the latter is so far advanced in governing itself that it approaches the notion of a particular unit of a federal state and coincides with it entirely, if it participates, in addition, in the legislation and admin¬ istration of the whole federal state (see pp. 97 et seq.). The notions " self-government ” and " autonomy ” are very com¬ prehensive. They comprise various sorts of government, more or less independent, contingent upon the amount of powers granted to the organization concerned. But with regard to the notion " decentraliza¬ tion ” we must first have clearly in mind what is decentralized and what relation exists between the center and the " decentralized ” part. If an administration is decentralized and is independent of the central admin¬ istration in the above-mentioned manner, as far as the organs and their jurisdiction are concerned, then we speak of self-government (perhaps, for such cases, a better expression would be " self-administration ”). But if a part of the legislative power is vested in the self-governing body and not in the central legislature, then we speak of " legislative autonomy ”; which is, in a sense, a pleonasm, the Greek word ” auton¬ omy ” itself meaning " legislation of one’s own.” If the central legis- THE STATE ORGANS 255 lative assembly which has authority over the entire state, is composed of some members who are directly interested in the regulation of special conditions in a particular part of the state, and of a greater number of members who are not, then the former are likely to be outvoted by the latter; and hence, even in states which have a demo¬ cratic central legislature, local legislative autonomy for peculiarly local needs and matters has been claimed in the name of democratic self- determination. In contradistinction to the word " decentralization ” a new, though not very euphonious expression has recently been coined: it is " deconcentration ”; it means that within the body of the "state administration ” itself which is, with respect to personnel and dis¬ cipline, subject to the central government, some of its inferior authori¬ ties have, in certain matters, independent and final jurisdiction. However, there is certain business which, as a matter of principle, is considered to belong to the jurisdiction of the central government and the organs under its authority, but which for various reasons (i. e., for disburdening the central administration, rousing the interest of the people directly concerned, etc.) has been delegated either to an organization especially established for this purpose (various charities organizations) or to a self-governing organization already existing, e. g., the municipality; this jurisdiction of the municipality is there¬ fore called a delegated jurisdiction. Since the idea of " natural rights ” of the municipality (commune) has been abandoned, the " proper ’’ and the " delegated ” jurisdiction of the municipality are, in sub¬ stance, not always easy to distinguish; the laws are not always in accord in determining what belongs to the proper and what to the delegated jurisdiction. To the English all these distinctions would seem very strange. But the " proper ” jurisdiction of a self-governing body, especially a municipality, if it is, and in so far as it is, determined by law, is important for the legal situation of this body towards the state administration. For the organs of the latter may exert control over the self-governing body whenever it acts outside of its " proper ” jurisdiction, not only as far as legality is concerned, but also in other respects; they may, at their own discretion, and for mere reasons of expediency, alter and abolish even lawful acts of the self-government organ. In this respect the latter is subject to the central government in the same way that, within the state administration, the lower author¬ ity is subject to the higher; for it must obey its instructions and orders, sometimes, if necessary, even under discipline. This applies, e. g., 256 A TREATISE ON THE STATE to the part municipal organs take in the administration of certain financial and military business. A consequence of this subordination is that the " state administration,” in certain countries and under certain conditions, is entitled to withdraw from the self-governing bodies the jurisdiction " delegated ” to them, and to exert it by its own organs. But, in its "proper” jurisdiction, the municipality as well as other self-governing organizations is under no control other than a mere " formal ” one (as explained above) which may, however, in certain cases prove to be very important. For this supervision includes the ques¬ tion of the legality (sometimes even when the legality is not challenged) not only of positive but also of negative acts, t. e., the omission of acts which, by law, must be performed. It is true that within the sphere of their proper jurisdiction the organs of self-governing bodies decide independently, but at the same time it is also their duty to make some decision, for self-government is allowed them in order to permit them to administer their own affairs; they must not leave them unsettled. And so it is that, if the municipal organs do not make the necessary appropriations in the municipal budget, the central government may insert in it the sum for, let us say, construction which the municipality, by law, is bound to have done, or for the repayment of a loan. The central authorities, furthermore, may suspend the execution of illegal resolutions of self-governing bodies; they may attend the assemblies of the latter, dissolve them, order new elections and carry on the business of the body concerned through central organs (commissioners) until the new assembly is formed. And, in addition, approval by the " state ” authorities is sometimes required for certain acts of the organs of self-governing bodies in order to secure them legal validity; this is the case especially in financial affairs, such as obtaining a loan, levying taxes, selling real property. Though it sometimes happens to be the case it is not an essential characteristic of the self-governing body that its organs serve in an honorary capacity only and receive no pay. Besides the business of the " state ” administration and that of self-government, there is yet another kind of business administered by both jointly, or, as it is customary to say, by the " bureaucratic ” and the " laical ” element together. Among the forms such admin¬ istration takes are these: that in which a board, composed of organs (representatives) of the self-governing body, is presided over by a state organ; and that in which the lower jurisdiction is exerted by THE STATE ORGANS 257 organs of the self-government and the higher by state authorities. Some such combined administration exists, in some countries, for edu¬ cational affairs. In many countries self-government and local government developed earlier than central government. In the medieval states, in contrast to the strictly centralized state of antiquity, self-government was very far developed and widespread. In the German countries the modern commune was evolved from a rural community ( " Markgenossen- schaft ” ). Merchants and tradesmen had their self-governing organi¬ zations (guilds), endowed with extensive powers; the universities governed themselves; the towns enjoyed very extensive self-govern¬ ment. But during the period of monarchical absolutism, when the European countries were rapidly becoming centralized, self-government became narrowly restricted. Nevertheless, certain self-governmental powers, especially in the towns were successful in asserting them¬ selves; and, as we have mentioned above, a new period of prosperity for self-government came in the 19th century. In France, in general, a system of strictly centralized administration, introduced by Napoleon I, still rules, in spite of elected representation in the departments and in the communes. In England, also, local self-government existed earlier than the central administration; and, notwithstanding various reforms, it did not lose its independence to such a degree as in the continental states. The attempts of the Stuarts to abolish independent self-government ended with the fall of their dynasty. Up to comparatively recent times, the business of administration in the counties was carried on by jus¬ tices of the peace who held, in addition to their judicial powers, also extensive administrative powers. They were appointed by the King; but he usually chose them from among the members of the landed gentry in the counties and, thus, from that class which represented the people in parliament. The justices of the peace were not profes¬ sional officials; they were simply prominent men of the county itself, with which they were intimately connected by reason of their landed property. And so the organs of self-government in the counties, although belonging to the aristocracy, were not strangers to the people. The central government (the cabinet) had no jurisdiction over the local government; the latter did not work under the regulations and orders of the former, but directly under the law. Whenever it appeared necessary for a self-governing unit to have a special regulation dif¬ ferent from the general laws, parliament passed a special law (local, 258 A TREATISE ON THE STATE private acts). Decisions of the local governments were not appealable to the central government but to the courts, and then only in case of violation of a law. This administration was not costly, for the jus¬ tices of the peace served gratis. In view of the close connection between local government and par¬ liament it is comprehensible that when, in the 19th century, the latter was reformed in a democratic sense, local government also had to be changed in the same sense. Most of the administrative powers of the justices of the peace have now been transferred to elected boards, i. e., to borough councils and to county councils (to which, under the Local Government Act of 1929, amongst others, the functions of the Poor Law authorities were also transferred). The counties are divided into districts and the districts into parishes; these smaller administra¬ tive units have likewise their elected councils. In spite of the fact that local government in England has now also been to some extent subjected to the control of the central administra¬ tion (as for example in certain financial matters), it was not possible, owing largely to the strict parliamentary regime, for any such sharp conflict to arise there, as arose between local government and the cen¬ tral offices of the monarchs (ministries) on the continent during the period of administrative centralization. As evidence of this it may be mentioned that, up to a few years ago, there existed in England even a special ministry for local government (Local Government Board) which evolved out of the central authority administering the Poor Law, and which is now united with the ministry of health. Another interesting fact has already been mentioned, namely that the usual continental distinction between the " proper ” and the " dele¬ gated ” jurisdiction of self-governing bodies is unknown in England. The election of the above-mentioned councils and of their organs does not require any confirmation by the central government. There are no intermediate authorities between the local government and the central government. But for all that, the latter (chiefly the ministry of health) can exert in certain important matters a rather telling influence upon the activity of the local government authorities, which is made effective also in an indirect way, by means of conditional grants for various purposes and services. This method has been main¬ tained by the afore-mentioned Local Government Act of 1929 in so far as the new annual consolidated grant may be reduced by the central government if the local government authority concerned has THE STATE ORGANS 259 failed, for example, to achieve a reasonable standard of efficiency and progress in the discharge of its functions relating to public health services, or if the roads have not been maintained in a satisfactory condition. In such ways as these the English attempt to harmonize as far as possible the independence of self-government and the guar¬ antee of its satisfactory functioning. The old institution of the justices of the peace who are now either appointed by the government or hold this office by virtue of their being at the same time the heads of self-governing units is still main¬ tained; but their powers have been greatly reduced, until now they include in the main only minor cases of criminal justice. This justice is administered either by a single judge or, as is more usual, by a court of at least two judges (petty sessions). When sitting in larger numbers (in special session or quarter session) the justices of the peace function either as an appellate court in cases of appeals against judgments of the aforementioned courts ( e. g. petty sessions) or, as a court of original jurisdiction in cases of more serious infractions of the law, or, finally, as an administrative authority in those rare matters which have not yet been passed over to elected self-government boards. Local Government in the United States of America is, to a large extent, after the pattern of English institutions; nevertheless, in recent times, it has developed some special features, e. g., regarding the administration of cities, for which various systems have been worked out: 1) the mayor and council plan; 2) the commission plan; 3) the city manager plan. 5 V. THE JUDICIARY It is of the essence of all acts of state organs that they be determined by some juridical rule; for otherwise we could not recognize them as acts of the state. Even in cases in which the state organ is allowed to act at his own discretion to the greatest conceivable extent, so that his act appears to be the expression of his will only, it is still necessary to consider whether he has proper jurisdiction and whether and how far he is legally allowed to use his discretion. This applies also to the legis¬ lative organ, who is often imagined to legislate freely and independ¬ ently; for this organ like all others is bound by the constitution and, therefore, its legislation must be in harmony with it. Whether state 8 Conf. Munro, The Government of the United States, Revised Edition, Macmillan, New York, 1930, p. 585-615. 260 A TREATISE ON THE STATE organs always actually contemplate their own actions in the light of legal prescriptions is another question, which has nothing in common with the problem now under discussion, for this problem has to do only with logical, and not with the psychological relations. It is important in considering these logical relations to note: 1) That every state organ, in his official activity, is bound by some juridical rule, even though this rule be the most general imaginable; and 2) that the fact of thus being bound does not entail a mechanical, automatic dependence for the very reason that the interpretation of the rule by which he is bound is left to the state organ himself. It must, more¬ over, be observed that the application of a rule is always connected with some degree of free discretion on the part of the organ applying it. For it would be hard to conceive of a rule which would make provision within itself for all the possible ways in which it might be applied, describing them in minutest detail. Hence it follows that all state organs are, on one hand, bound by the law, but that they are, on the other hand, more or less free in their action, i. e., within the limits of the law. The revolutionary legislator alone is not legally bound; and precisely for this reason his acts are not legal but revolu¬ tionary; yet in so far as his acts are perhaps judged by some rules, e. g.j by international law, to that extent they cannot be considered to be unbound. Not only state organs but other people also perform juridical acts. The difference, however, is that such acts of " private ” people lack full authoritative force until they are examined and confirmed by state organs; it is this confirmation which confers upon them the character of real law, e., the capacity of eventually being executed by force. Even within the state organization itself it happens that juridical acts are performed which have no authoritative character in this sense (actes de gestion) ; to this category belong contracts and other legal deeds of the state administration concerning state enterprises (rail¬ ways, mines, factories) and, likewise, civil acts of the same kind performed by self-governing organizations, e. g., municipalities. But, owing to the fact that they lack authoritative character, such acts, in contested cases, are subject to the examination and control of those state organs whose duty it is, and who have the power, to decide authoritatively what is lawful by giving it the sanction of enforcement. In the following pages we shall treat only of authoritative acts (actes d’autorite) ; and we shall see that, regarding such acts, there is no essential difference between the administration and the judiciary. THE STATE ORGANS 261 It is evident that an authoritative and obligatory decision or declara¬ tion concerning the existence of particular rights and duties must be in some logical connection with what is ordained by that juridical rule which is the source of these rights and duties. The contents of this rule reappear in the judgment that the particular case is ruled by it, and the obligatory force of this rule is reproduced in the com¬ mand to comply with this judgment. This applies equally to those state acts which we call " judicial acts ” or " acts of the judiciary ” and to those which we call " administrative acts.” Acts belonging to either category serve for the application of law (/. e., of juridical rules in general) ; in both of them the two aforementioned elements become manifest; the difference between them lies merely in the degree to which one or the other of these elements is stressed. In the idea represented in the phrase " execution of the law,” the more the idea execution (/. e., the fact of ordering or commanding, through which it is sought to bring about a certain course of conduct, either active or passive) is stressed, the more one is inclined to think of something which is in itself creative and to speak of an order; but the more the idea law, and thus conformity to law, is stressed, the more the depend¬ ence upon law, and thus the element of "judging” (/. e., comparing of acts and facts with legal norms) comes to the foreground. We call a judgment the express declaration, oral or written, of the con¬ formity or nonconformity of the facts of a case to a norm; such a pronouncement is deemed necessary particularly when the facts them¬ selves, or the meaning of the norm applicable to them, or both, are disputed, or when the state authority, in disputed or undisputed cases, is about to encroach upon important human interests, as e. g., through severe penalties affecting property, liberty, or life. However, " judgments ” in the aforementioned sense are pro¬ nounced not only by organs described as " judicial ” but also by admin¬ istrative authorities; and, on the other hand, "orders” are issued not only by administrative authorities, but also by courts. Yet, it is true, that, in the work of the judiciary, a particular stress is laid upon judg¬ ing explicitly, which appears in pronouncements of the judgment,— and that, in the work of the executive, stress is laid rather upon the " ordering,” which, of course, must likewise be based on juridical norms; however, in this latter instance the conformity to law need not always be determined in such a careful way and this need not be declared explicitly in a pronouncement as is the case with a judgment of a court. The main reason therefore is, that, in many cases, admin- 262 A TREATISE ON THE STATE istrative organs are permitted or even obligated by law to do, accord¬ ing to their own discretion, whatever they deem to be in the public inter¬ est; this applies to the higher executive, the " government ” ( e. g., when it directs commercial politics) as well as to the lower one ( e. g., when it secures order and peace). It may seem that the official action in these cases derives its authority from the will of the organ alone, particularly if the latter is at liberty to choose between two possible acts contrary to each other, e. g., to allow or to forbid a meeting. But in reality, in this case, as in others, the action of the organ derives its authority from the law which permits this liberty of action and sets bounds to it, which are indicated at least by the notion of the public interest. If the organ’s will, in reality, were the source of the authority of his act, then he could act against what he considered to be the public interest. In contradistinction to these cases in which the action of " judging according to law ” is eclipsed by the action of " issuing an order,” there are certain judicial acts in which the reverse can be observed; such are judgments which contain no enforceable order, but which sim¬ ply consider facts in the light of the law and which, consequently, merely ascertain the existence of rights. Thus, under the Scotch Law, a " declaratory action ” may be brought before the court, and a " decla¬ ratory judgment ” passed which " simply declares the right of the parties or expresses the opinion of the court in a question of law, without ordering anything to be done.” Yet, the final purpose of such a judgment is not merely the ascertainment of rights and nothing more, but rather it is the establishment of a legal basis for eventual orders which may become necessary if the rights ascertained by the judicial declaration should not be respected. As this judgment is not an end in itself, so also the later issuance of a corresponding order is not to be considered as something independent but as a legal con¬ sequence of the foregoing " declaratory judgment,” which, thus, was merely a preparatory act. It may be further remarked in this context that an acquittal pronounced by a criminal court is not only such a judgment as is that of a private person who finds the accused guiltless in the eye of the law, but that it also implies an authoritative order, namely the forbiddance of his further prosecution. Something similar is to be said of official certificates, which imply, besides the mere attestation, the order to take what is attested as formal truth. Thus, some connection between the " judgment” and the " order” is essential to any authoritative act of a state organ, though sometimes THE STATE ORGANS 263 the one and sometimes the other element is emphasized more. Ages ago, Plato recognized that the activity of the state organs is essentially the same, no matter whether this activity was a " judging ” or an "ordering”; in either case judging according to the law, Kpivciv, and ordering according to this judgment, ap^av, are involved. In his work on "The Laws” (Nomoi, 767) Plato said that every apx